Case 1:17-cr-00232-EGS Document 183 Filed 04/28/20 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.
Crim No.: 17-232 (EGS)
MICHAEL T. FLYNN,

Defendant

MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL NOTICE

REGARDING TRANSFER OF CASE FILE TO SUCCESSOR COUNSEL

Covington & Burling LLP, former counsel to Defendant Michael T. Flynn, respectfully

requests leave to file a Second Supplemental Notice Regarding Transfer of Case File to

Successor Counsel. The proposed Notice, which is attached, provides further information to the

Court regarding Covington’s transfer of its file of its representation of Mr. Flynn.

April 28, 2020 Respectfully submitted,

Robert K. Kelner (D.C. Bar No. 466880)

Stephen P. Anthony (D.C. Bar No. 426536)
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
(202) 662-6000
 Case 1:17-cr-00232-EGS Document 183 Filed 04/28/20 Page 2 of 2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 28th day of April 2020, I caused the foregoing to be

sent by electronic mail to the following:

Jocelyn S. Ballantine Jesse R. Binnall

U.S. Attorney’s Office for the District of Harvey & Binnall, PLLC
Columbia 717 King Street, Suite 300
555 Fourth Street, NW Alexandria, VA 22314
Washington, DC 20530 (703) 888-1943
(202) 252-7252 jbinnall@harveybinnall.com
jocelyn.ballantine2@usdoj.gov
W. William Hodes
The William Hodes Law Firm
3658 Conservation Trail
The Villages, FL 32163
(352) 399-0531
wwh@hodeslaw.com

Sidney Powell
Sidney Powell, P.C.
2911 Turtle Creek Blvd. #300
Dallas, TX 75219
(214) 707-1775
sidney@federalappeals.com

Robert K. Kelner
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
Phone: (202) 662-6000

2
 Case 1:17-cr-00232-EGS Document 183-1 Filed 04/28/20 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.
Crim No.: 17-232 (EGS)
MICHAEL T. FLYNN,

Defendant

COVINGTON & BURLING LLP’S SECOND SUPPLEMENTAL NOTICE

REGARDING TRANSFER OF CASE FILE TO SUCCESSOR COUNSEL

On April 8, 2020, Covington & Burling LLP (“Covington”) submitted a Supplemental

Notice Regarding Transfer of Case File to Successor Counsel (“Supplemental Notice”), in which

Covington informed the Court that it had found emails that were not transferred to successor

counsel last year due to errors in the process of collecting and searching electronic materials,

as well as two pages of handwritten notes that inadvertently were not transferred. Covington

submits this Second Supplemental Notice to apprise the Court of the current status of this matter

and to describe documents that were transferred today.

Prior Productions

As context, Mr. Flynn’s new counsel delivered a letter to Covington terminating its

representation of him on June 4, 2019. The Court granted Covington leave to withdraw on June

7, 2019. [June 7, 2019 Minute Order]. One week later, on June 14, 2019, Covington transferred

the vast bulk of its client file, consisting of its working case file, as well as additional documents

to supplement it.

The working case file was voluminous. Covington had maintained in the working case

file its key work product documents, letters, pleadings, interview notes, research memoranda,
 Case 1:17-cr-00232-EGS Document 183-1 Filed 04/28/20 Page 2 of 4

document productions, document binders, chronologies, and other significant materials related to

the representation. These materials, contained within a shared computer drive and organized in

folders with descriptive names, were transferred to successor counsel on June 14, 2019. At the

same time, the firm transferred other materials, including documents that had been collected

from the client during the representation. These transfers, all of which were completed by June

14, 2019, totaled approximately 580,000 documents.

In June and July 2019, the firm responded to successor counsel’s specific requests for

information and further supplemented the file transfer by searching for documents not routinely

maintained in the working case file, such as emails, handwritten notes, voice and text messages,

time records, and the like. By July 23, 2019, after completing these supplemental searches, the

firm had transferred to successor counsel approximately 83,000 additional documents. This

resulted in a total transfer, before today, of approximately 663,000 documents.

Today’s Production

In the Supplemental Notice, Covington noted that it had discovered, during the course of

responding to this Court’s March 6, 2020 Order [ECF No. 174], emails that had been

inadvertently omitted from the previous file transfer. Since then, we have worked diligently (a)

to understand the reason that the email collection in June and July 2019 had been narrower than

intended, (b) to re-execute the email searches that we had intended to conduct last year, and then

(c) to collect, process, review, and transfer the emails promptly to Mr. Flynn’s current counsel.

Covington determined that an unintentional miscommunication involving the firm’s

information technology personnel had led them, in some instances, to run search terms on

subsets of emails the firm had collected for its response to document requests in United States v.

Rafiekian, the case involving Mr. Flynn’s business partner and their FARA-related work through

2
 Case 1:17-cr-00232-EGS Document 183-1 Filed 04/28/20 Page 3 of 4

their consulting firm, rather than on the broader sets of emails that should have been searched.

The subsets that actually were searched nevertheless contained a large volume of emails

concerning our representation of Mr. Flynn and his consulting firm. All of the emails resulting

from this search were transferred to successor counsel in June and July 2019.

Covington has now re-executed the email collection and searches on the broader set of

emails, correcting the error made as a result of the miscommunication. In so doing, we again

used electronic search terms and manual reviews to target documents in the client file. This

effort yielded an additional set of approximately 6,800 documents and emails (including

attachments) that were not produced during the client file transfer in July 2019. 1 These

documents, comprising approximately 1% of the 669,800 total documents transferred in this

case, were produced to successor counsel today.

* * *

In sum, Covington sought last year to go beyond producing the working case file that was

routinely maintained throughout the representation. Covington used such e-discovery tools as

electronic search terms, as well as manual reviews, to identify other emails and documents that

could be part of the client file. We now have performed another search, using search terms and

manual reviews, on a broader universe of material to correct the earlier error and to transfer

additional documents that are part of the client file. Moreover, to the extent that successor

counsel makes specific requests for documents not already captured and transferred, we will, of

course, make reasonable efforts to consider and address such requests. We also stand ready to

address any questions the Court may have.

1
We made a good-faith effort to de-duplicate these emails against those transferred last year to
successor counsel. In some instances, emails produced today are continuations of email chains
already transferred and/or contain additional copies of documents already transferred.

3
 Case 1:17-cr-00232-EGS Document 183-1 Filed 04/28/20 Page 4 of 4

April 28, 2020 Respectfully submitted,

Robert K. Kelner (D.C. Bar No. 466880)

Stephen P. Anthony (D.C. Bar No. 426536)
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
(202) 662-6000

4
 Case 1:17-cr-00232-EGS Document 183-2 Filed 04/28/20 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.
Crim No.: 17-232 (EGS)
MICHAEL T. FLYNN,

Defendant

[PROPOSED] ORDER

Upon consideration of Covington & Burling LLP’s Motion for Leave to File Second

Supplemental Notice Regarding Transfer of Case File to Successor Counsel, it is hereby

ORDERED that the Motion is GRANTED; and it is further

ORDERED that Covington & Burling LLP’s Second Supplemental Notice Regarding

Transfer of Case File to Successor Counsel is deemed filed in the above-captioned proceeding.

SO ORDERED.

, 2020
The Honorable Emmet G. Sullivan
United States District Judge