Attorneys for former Goldman Sachs banker Roger Ng said they are considering moving for a mistrial after prosecutors revealed late Tuesday that a U.S. Department of Justice privilege review team failed to release thousands of documents related to the case, which involves a massive scheme centered on a Malaysian economic development fund.
Approximately 15,500 of the undisclosed documents are related to Ng’s former boss Tim Leissner, who pleaded guilty to several charges in 2018 and began testifying against Ng last week as the government’s star witness.
“The error by the Privilege Team is inexcusable,” the prosecutors wrote in their letter.
Ng’s lead counsel Marc Agnifilo of Brafman & Associates told the Law Journal he will make a final decision regarding the mistrial motion once he has reviewed the 15,500 documents, which he had not yet received as of late Wednesday afternoon, along with 120,000 pages that were turned over just after opening arguments earlier this month.
Leissner’s direct examination is still ongoing, but U.S. District Chief Judge Margo K. Brodie of the Eastern District of New York said she will adjourn the trial ahead of cross-examination to allow Ng’s defense team to examine the documents.
In Tuesday night’s letter, the prosecutors working on the trial said they learned at 10:30 p.m. that the DOJ privilege review team, which was comprised of trial attorneys in the Criminal Division, had not turned over the documents despite previously telling the trial team that “the review had been completed and there were no Leissner-related documents left to produce.”
“The Case Team has directed the Privilege Team to release for immediate production the non-privileged documents,” the trial team wrote. “In addition, the Case Team has escalated the matter to a DOJ attorney who supervises the Privilege Team, who will oversee that production and ensure that the Privilege Team has not retained any other non-privileged documents.”
The trial team also noted that they, like Ng’s defense team, had not received the 15,500 documents deemed non-privileged by the review team.
