The opinion of the court was delivered by: Richard J. Holwell, District Judge
Before the Court is the government's motion to compel defendant Raj Rajaratnam to immediately disclose (a) the names of any expert witness he intends to call at trial as well as any such expert's qualifications, opinions and the bases for those opinions; and
(b) any wiretap or consensually recorded telephone calls that he intends to introduce into evidence at trial. For the reasons set forth below, the government's motion is granted.
In January 2011, Rajaratnam and the government agreed that the government would produce to Rajaratnam on January 26, 2011 materials pursuant to the Jencks Act,18 U.S.C. § 3500; a list and copies of exhibits; and expert disclosures. Rajaratnam and the government also agreed that Rajaratnam would produce to the government on February 9, 2011 a list and copies of exhibits as well as expert disclosures. The government appears to have produced its Jencks Act material and both parties appear in general to have produced lists and copies of exhibits as per their agreement. However, a dispute remains regarding Rajaratnam's expert disclosures and certain audio recordings.
On January 26, 2011, the government informed Rajaratnam that the government did not intend to call an expert witness in its case-in-chief. On February 10, 2011, counsel for Rajaratnam wrote to the government indicating that "Rajaratnam declines at this time to produce a summary of expert testimony, as one is not required." (Letter from J. Dowd and T. Lynam to J. Streeter, R. Brodsky, and A. Michaelson, Feb. 9, 2011 (attached to Gov't Mot. as Ex. A) at 2.) Counsel for Rajaratnam stated that "[w]hen we reached our agreement regarding the schedule for disclosure of expert testimony, we did so with the understanding that the government would first 'comply'" within the meaning of Federal Rule of Civil Procedure 16(b)(1)(C)(i) "by producing its expert summary on January 26, 2011, which would trigger our production on February 9, 2011." (Id. at 1.) However, because the government informed Rajaratnam that "the government had no expert witness," counsel for Rajaratnam stated that "the government has not 'complied' under the Rule and the defendant is not obligated to provide expert disclosure under Rule 16(b)(1)(C)(i)." (Id. at 1.)
In the same February 10 letter, counsel for Rajaratnam stated that they had "not included any wiretapped conversations or consensually-recorded conversations on our exhibit list at this time" but added that they "reserve[d] the right to use any of those materials at trial, which materials are already in the government's possession." (Id.)
On February 14, 2011, the government moved  to compel Rajaratnam to immediately disclose (a) the names of any expert witness he intends to call at trial as well as any such expert's qualifications, opinions and the bases for those opinions; and (b) any wiretap or consensually recorded telephone calls that he intends to introduce into evidence at trial.
Federal Rules of Evidence 702, 703, and 705 govern the use of expert testimony. Federal Rule of Criminal Procedure 16(b)(1)(C) provides that "[t]he defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if (i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies . . . ." Fed. R. Crim. P. 16(b)(1)(C). Rule 16(a)(1)(G) provides that, "[a]t the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial" and that such a summary "must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(a)(1)(G).
There is no dispute here that, pursuant to Rule 16(a)(1)(G), Rajaratnam requested a summary of any expert testimony the government intended to offer at trial and that, pursuant to Rule 16(b)(1)(C), the government requested a summary of any expert testimony that Rajaratnam intended to offer at trial. Nor is there any dispute that the government responded to Rajaratnam's request by stating that the government did not intend to introduce any expert testimony at trial. The only dispute is whether by making that response, the government complied with Rajaratnam's request within the meaning of Rule 16(b)(1)(C) such that Rajaratnam must respond to the government's request.
In arguing that no response is required, Rajaratnam relies on United States v. Young, No. CR-09-140-B-W, 2010 WL 1418748 (D. Me. 2010). In that case, the defendant requested a summary of any expert testimony that the government intended to introduce at trial. The "Government indicated it had none." Id. at * 2. On the day before trial, the defendant notified the government of his intention to call an expert witness at trial. See id. at *1. The government moved in limine to preclude the defendant from introducing expert testimony on the ground that the defendant had not complied with his obligation under Rule 16(b)(1)(C) to disclose a summary of any expert testimony that he intended to introduce at trial. Reasoning from the premise that "[t]he spirit of Rule 16 . . . is that the discovery is reciprocal," the court concluded that "[i]f the Government has elected not to call an expert witness, the discovery is no longer reciprocal." Id. at *2. Instead, disclosure would be "one-sided" and cast "a shadow over the defendant's right against self-incrimination, his right to counsel, and work product doctrine." Id. at *2.
That reasoning is unpersuasive for three reasons. The first is apparent from the face of the text of Rule 16. As the government points out, Rule 16 provides that the court may impose sanctions where "a party fails to comply with th[e] rule." Fed. R. Crim. P. 16(d)(2). Therefore, if the government has failed to comply under Rule 16(b)(1)(C) by declaring that it does not intend to introduce expert testimony, then either (a) the government has engaged in sanctionable conduct; or (b) "comply" must mean one thing in one part of Rule 16 and something different in another part of the same Rule. Neither possibility makes sense as a matter of statutory construction. As to the former possibility, "[a] statute should be interpreted in a way ...