Page:DOJ Response to Special Master.pdf/33



For all the above reasons, the Court should not appoint a special master. If the Court decides to do so, as directed by the Court, the government proposes the following conditions.

First, the Court should direct the parties to confer and submit a joint list of proposed candidates by September 7, 2022.

Second, the special master should be required to submit an affidavit concerning any potential bases for disqualification before this Court issues an appointment order. See Fed. R. Civ. P. 53(b)(3)(A).

Third, the Court should specify the following duties and impose the following limitations:
 * The special master’s duties should be limited to assessing Plaintiff’s claims of attorney-client privilege over the set of potentially privileged documents identified by the Privilege Review Team. Fed. R. Civ. P. 53(b)(2)(A). For the reasons articulated above, there is no precedent or basis for appointing a special master to review documents for executive privilege and barring current Executive Branch law enforcement officials or officers from continuing to access that material, including to assess national security risks.
 * If the special master must be permitted to review classified documents, in order to avoid unnecessary delay, the special master should already possess a Top Secret/SCI security clearance.
 * The special master should be allowed to communicate ex parte with the Court or either party to facilitate the review, although all final decisions must be provided to both parties to allow for either party to seek the Court’s review. Fed. R. Civ. P. 53(b)(2)(B).