From: Jeff M. Fischbach, ABFE < Sent: Thursday, August 21, 2025 9:24 AM To USANYS) < M ; (USANYS) >: Robert M. Herz a elizabeth kelley ; Samuel M. Braverman c (USANYS) Subject: Fwd: [EXTERNAL] Propose Protocols Good morning! Appologies everyone. In my rush to reply on my way to the FBI to transcribe work product, I hit at , instead of Reply All on the last message. It is below. TL/DR: Fm still hoping that today will get me a copy of the FBI protocols we need to meet in order to remove our complete work product, I invited him to speak directly with me while I am here, per his request, and again, asked that he accurately convey to RCFL Directorl i that I'd like to speak with him and get a written copy of the RCFL's calendar availibity and site-specific protocols, per Robert Herz's prior request. Also, I wanted to mention that, once again, the FBI Defense workstation WAS rebooted (confirmed), and the docked drives removed, and placed on the table. We did, again, leave things open, and working for work product removal when we last left. I don't know yet the status of that. I'm hopeful that it completed before the machine was reset, and drives removed. Forvi aided message From: Jeff M. Fischbach, ABFE Date: Thu, Aug 21, 2025, 8:10 AM Subject: Re: [EXTERNAL] Propose Protocols (USANYS) > I find the repeated misrepresentation of written words to be unproductive. So, I won't respond to any of them, but to say that -- as has always been the case -- I am waiting for you to allow the director to speak directly with me. That, as I requested, can be done by email to him, CC'ing me. No one is declining a call with the RCFL. Much as you gave us "options" -- other than the one we requested and received from the Court -- Robert gave you an option to expedite getting a calendar and any location-specific protocols from the RCFL, which has been my stated reason EFTA01656932

for calling the Director. (My experience has been that the Director is generally who I am asked to contact for my examinations.) Instead of miscommunicating to him that anything has been "declined", please tell Jeff that I would very much like to speak with him, and that I remain available to him at- the number he has previously used to reach me. Please use those exact words, rather than what my words may suggest to you. Per your repeated suggestion to speak without written or recorded evidence, I'm offering you the option to come down and let us into the building this morning -- as has done -- and speak with me at the FBI, so that I can answer anything that may still confuse you. I will be there in an hour, at 9AM, transcribing our work product, absent the protocols you have declined to provide. While transcribing work product may be a form of "work", it is not the work we wish to do at the RCFL, or the work we have been trying to do at the FBI. It is simply a never-before- required-task -- in ANY case, anywhere in the nation -- because everywhere else, including multiple RCFL's, we have been provided the written policies and protocols we need to follow, both to complete work and remove work product. Similarly, we generally have a Protective Order to follow. Please accept my offer. I would like to help you understand what we are doing today, what we have been attempting to complete, and why your expressed and written protocols fall short of the RCFL. I hope to see you there, and I hope that you will bring a copy of the FBI protocols I need to fillow in order to get -started, so we can remove work product. Jeff Michael Fischbach Forensic Technologist ■ Litigation Consultant ■ Adviser ■ Lecturer ■ Public Speaker SecondWave, Inc., Los Angeles, CA On Wed, Aug 20, 2025, 9:53 PM wrote: (USANYS) Robert, EFTA01656933

Your email, like many others in the past three weeks, is unfortunately inaccurate in multiple ways, both to the extent it appears to repeat prior assertions and accusations, and to the extent it appears to make new ones. In any event, these types of emails plainly are not a productive manner of working through any asserted issues. We remain available to confer, but as we stated weeks ago, we cannot consent to recording (nor has anyone else demanded that as a condition to conferring in our collective decades with this office, although we will continue to consider all requests on the merits and in good faith, regardless of whether they are or are not typical). We also understand that you are declining to speak with the Philadelphia RCFL, which surprises us and is a change from what you requested previously, including in your email below of yesterday. We will continue to be available to set up such a call, but in the meanwhile, we will inform the Philadelphia RCFL that you decline to have such a call. As we understand the present state of affairs, you are declining to confer with us unless it is recorded; you are declining to speak with the Philadelphia RCFL; while Jeff has been using the FBI space, and has plans to do so again tomorrow, he has expressed concern about alleged written, but unidentified, protocols, but he too will not confer with us unless it is recorded; and you are declining to utilize our space, which would involve, as we stated in writing a number of days ago, a locking and private room, without any form of contemporaneous monitoring, thereby meeting or exceeding what you said you wanted (and we also offered to consider any other requests you might make about that space, and you made none). Absent a change in the foregoing by tomorrow afternoon, we plan to ask the Court to schedule a conference. From: Law Office Of Robert Herz < Sent: Wednesday, August 20, 2025 10:50 AM To: II (USANYS) (USANYS) Cc: 'ELIZABETH KELLEY (USANYS) Subject: RE: [EXTERNAL] Propose Protocols >; 'Samuel M. Braverman' ;'Jeff M. Fischbach, ABFE' < (USANYS) >; I won't waste time responding to your comments regarding the government's view of what it refers to as a media exam report. But your comment does miss the point. I specifically referred to the spreadsheet of files for Evidence item 1B2. It is the disclosure of these 80,000+ files that represents potential new evidence, since up to that time the government had not been able to access that drive to create any kind of forensic copy, and still hasn't. And without waiving any argument about the reliability of any data derived from 1B2 or 1.81.5, or the spoilation of those drives, presumably the government intends to rely on those 80,000+ files in whole or in part in prosecuting Mr. Smith. Conducting a forensic exam of 1B2 and 1615 given the volume of files will take quite some time. EFTA01656934

We are ready to have= the government's taint agent, to review our work product, as soon as you provide Jeff a copy of the FBI security protocols you referenced. Please respond to the request to provide the protocols. It is an entirely reasonable request. I do not understand why the government has not responded to the request and has not yet provided the FBI Security Protocols. BTW please check your reference to a July 26 date I have no such email referring to a taint agent on that date. As for RCFL scheduling, I think having the RCFL provide a calendar with available dates and times will be more expedient than any call; they should be able to do that today. You reference RCFL procedures, if the Philadelphia RCFL has established and written procedures please forward those to me; to the extent they already exist, they should be available today. As we have expressed in earlier emails, Jeff did not accept any offer or agree to anything, your understanding to the contrary. As I have observed a recording of that call would easily resolve this issue. And as also expressed in prior emails, the only "multiple options" the government has offered have consisted of the FBI space which we noted to the court and the government was deficient for a host of reasons. The space in the DOJ space was deficient for multiple reasons as well, including but not limited to, the space was an unlocked room putting our equipment and work product at risk, and the government's insistence to remove the FBI evidence from the room each evening, which would interfere with data processing of drives and seriously delay our work. Our consideration of the DOJ SDNY space was conditional on the exam room conditions and protocols being at least what is offered by an RCFL. The government never reduced to writing what the exam room conditions and protocols would be, and so I made clear in an email August 7, that since adequate conditions at the DOJ space apparently did not exist, our request to conduct the exam at the RCFL stood. We have never wavered on that request since July 30, notwithstanding our willingness to hear the government's proposal on August 1. We would be happy to confer by telephone, Zoom, or Teams when the government consents to recording the meeting. Regards, Robert M. Herz Law Offices of Robert Herz, P.C. The Seventh & E Building 431 West Seventh Avenue Suite 107 Anchorage Alaska 99501 EFTA01656935