More than a year after the District Attorney’s Office raided the offices of the city’s former 101 Ash St. landlord and an ex-real estate adviser, investigators have yet to begin reviewing evidence from the 19 devices they seized – and a Monday court ruling ensures their probe won’t conclude any time soon.
Early last October, District Attorney Summer Stephan’s office executed simultaneous search warrants after it was publicly revealed that then-city landlord Cisterra Development paid Hughes Marino CEO Jason Hughes $9.4 million for his work on the city’s Civic Center Plaza and 101 Ash St. deals.
No criminal charges have been filed and the latest court action ensures they aren’t imminent.
For months after the raids also targeting Hughes’ Rancho Santa Fe home, investigators and attorneys for Hughes and Cisterra have tangled over how to resolve what documents and communications should – and shouldn’t – be covered by attorney-client privilege that would shield them from investigators.
Superior Court Judge Kenneth K. So on Monday, ordered the District Attorney’s Office and the computer forensics lab processing data on the devices to hand over records they have deemed not covered by attorney-client privilege to lawyers for Hughes and Cisterra.
The attorneys will then get 10 days to flag privilege issues on each of the devices – which include cell phones and hard drives – before investigators can start digging in, So said.
Hughes’ attorneys previously submitted a list of 104 names and email domains they had communications with that they would consider privileged while Cisterra submitted 83, according to court filings obtained by Voice of San Diego.
The FBI-sponsored San Diego Regional Computer Forensics Laboratory has for months been processing records and working to set aside privileged communications.
The District Attorney’s Office argued So should allow investigators to begin analyzing the records not been deemed privileged and to flag any potentially privileged records that came up in that review.
Deputy district attorneys also said the lab process to prepare documents to be reviewed would take four to five days per device and that viewing them requires specialized software. They also noted investigators already returned the devices to Hughes and Cisterra, giving their attorneys access to them.
“The search warrants were served over a year ago and we need to complete our investigation,” Deputy District Attorney Leon Schorr told So.
Lawyers for Hughes and Cisterra argued they should have a chance to ensure no privileged records slipped through.
“All we’re looking for is a practical solution that gives us a checks and balance,” Hughes’ attorney Michael Attanasio said.
Cisterra attorney Michael Riney said independently vetting the records was both necessary and feasible.
“We’re open to any solution that protects the privilege,” Riney said.
Deputy District Attorney Martin Doyle argued Attanasio and Riney were asking for a process akin to allowing defense attorneys in before investigators conducted a search warrant.
So wasn’t convinced.
“I think it is the proper way to proceed to make sure everyone understands exactly what it is that you’re reviewing and to give the other side the chance to make any privilege objections,” So said. “It doesn’t have to be done all at once. It can be done as soon as the data for each device is separated and copied.”
The judge said Hughes and Cisterra’s attorneys would get 10 days to review records on each device before criminal investigators could start their review.
“This should be completed in a couple of months,” So said.
Attanasio and Riney pledged their teams could handle the technology issues and would move swiftly on their reviews – though they noted it wouldn’t be easy.
“We will move promptly,” Attanasio said. “We will move heaven and earth.”
Both attorneys declined to comment after the hearing.
Schorr acknowledged So’s order would further slow the investigation.
Even without the judge’s ruling, probes of alleged fraud and financial crimes can drag on due to the complexity of evidence and standards of proof required to proceed.
“We’ll continue to keep moving as fast as we can,” Schorr told Voice.
Monday’s court action is the latest chapter in a city real estate debacle that engulfed two city buildings – 101 Ash Street and Civic Center Plaza – and City Hall since the public revelation that Cisterra paid Hughes for his work on the two leases. That revelation that triggered city legal efforts to void both deals. The city has since settled with Cisterra and bought out its leases on both buildings. Its civil conflict-of-interest cases against Hughes are continuing.
Hughes, who in 2013 volunteered to advise then-mayor Bob Filner on real estate issues, told multiple city officials he wanted to be paid by someone other than the city. Hughes has also produced a letter he says the city’s former real estate director signed giving him the go-ahead to seek compensation for complex city lease deals. Yet the former real estate official and other former city officials have said that they didn’t know the city’s landlord paid Hughes. Cisterra, meanwhile, has said it relied on Hughes’ word that he got the city’s approval to be paid.