The opinion of the court was delivered by: Hon. Hugh B. Scott
Before this Court are defendants' omnibus discovery motions (Docket No. 225 (Ard and other defendants' joint motion*fn1 ); Docket Nos. 217 (Cruz), 220 (Beasley), 223 (Dolly), 224 (Hawkins), 227 (Bobby Spencer), 230 (joinder motion of defendant Ainsworth), 232 (joinder motion of Beasley), and 233 (joinder motion of defendant Barton)), following defendants' motion to bifurcate pretrial motions and to extend time to file further motions (Docket No. 122), which was granted on May 13, 2011 (Docket No. 215). That Order set a further schedule for filing discovery motions, including motions regarding the manner of the Government's disclosure of electronically stored information and surveillance information raised in the motion to bifurcate. Defendants filed their moving papers (Docket No. 226) and replies (Docket Nos. 259, 260-61, 263 (motions joining in Ard movants' reply)), and the Government responded (Docket Nos. 253, 269). The Government also moved for reciprocal discovery (Docket No. 253, Gov't Response at 51). The motions were argued on August 12, 2011, and deemed submitted as of that date. In addition to the moving papers described above, the Court relies upon the earlier moving papers for the motion to bifurcate*fn2 .
This Order considers one aspect of the defense motions, regarding the manner of production by the Government of the electronically stored information (or "ESI"). Despite the due process and liberty interests inherent in criminal actions, the Federal Rules of Criminal Procedure omit a key area in dealing with discovery that has been a common place aspect of civil practice since 2006. This Court has been asked to address the manner in which the Government (and presumably defendants, since the Government also moves for reciprocal discovery, Docket No. 253, Gov't Response at 51, although not specifying the manner for that production in general or regarding any electronically stored information) is to produce discoverable material, particularly certain ESI where the Federal Rules of Criminal Procedure are silent as to that issue. Thus, as a matter of first impression (at least in this District and Circuit, cf. United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) (Facciola, Mag. J.) (discussed below)), this Court will address the issues arising from the manner of this production. Other discovery motions will be considered in a separate Order.
Meanwhile, a Third Superseding Indictment*fn3 was filed on April 21, 2011 (Docket No. 202). For judicial economy, it is presumed that defendants (save where they have moved otherwise) have continued their motions filed under previous versions of the Indictment.
Ard and other defendants are charged with conspiracy to distribute cocaine and cocaine mixture and with the use of interstate communication facilities to commit a drug felony (Docket No. 202, 3rd Superseding Indict., Counts 1, 2-23). Defendant Will Johnson is also charged with multiple counts of money laundering and engaging in unlawful monetary transactions (id., Counts 26-30). The Third Superseding Indictment alleges that twenty-four defendants*fn4 were involved in this conspiracy (Docket No. 202), of whom seventeen have Criminal Justice Act appointed counsel, including counsel for defendant Damian Ard.
The criminal investigation leading to this Indictment and its superseded pleadings involved (among other tactics) court-authorized interceptions of cellular telephone communication indicating that defendants allegedly engaged in drug trafficking (see Docket No. 164, Gov't Atty. Aff. ¶ 3). In its voluntary discovery, the Government furnished defense counsel with disks containing thousands of pages of documents "using the IPRO program routinely used by the United States's Attorney's Office in cases such as this, which involve multiple defendants charged with participating in drug conspiracies, and employing investigative techniques, such as court-authorized intercepted communications" as well as audio recordings of intercepted communications (id. ¶ 4, Ex. A). The Government supplemented this information (id. ¶ 8, Ex. D; see, e.g., Docket No. 213, Gov't Atty. Further Aff. ¶ 2 (listing dates for service of additional discovery)).
Ard and those defendants who joined his motion have moved (among other relief) to compel production of call data from wiretaps in a particular format (Docket No. 122). This arises from the Government's voluntary discovery in this case (id., Mahoney Affirm. ¶ 3). Ard claims that the reported data has problems with omissions and inaccuracies (id., Mahoney Affirm. ¶ 6). This call data was collected and managed by a system called "VoiceBox," from JSI Telecom, (see id., Mahoney Affirm. ¶ 7). Ard objects to the failure of the Government to provide this call data "in the most useful form that is readily available" (Docket No. 122, Mahoney Affirm. ¶ 12), complaining that he has been presented with graphic images (".tiff" files, or hereinafter "TIFF") that cannot be sorted or searched and lack missing information (such as minimization data) that a ".pdf" file (or Portable Document Format, hereinafter "PDF") would have (id. ¶ 18). Ard wants the data presented either in its native format or in a "text-accessible" PDF (id. ¶ 14). Ard contends that the Government can produce, for example, reports of minimization data in the desired manner (id. ¶¶ 21-22). Without this information, Ard concludes that defendants cannot "within reason" determine "the average call length, the percentage of minimizations, and the accuracy of any minimization claims -- all essential to challenging the government compliance with minimization requirements" (id. ¶ 23). Other defendants complain about the limitations of the Government's IPRO system for reviewing evidence (Docket No. 224, Hawkins Atty. Aff. ¶¶ 5-15). As for the warrant application documents, Ard complains that they were voluminous but also not text-accessible (Docket No. 122, Mahoney Affirm. ¶ 34). Ard argues that it would be costly in time and resources for defendants to have this data processed through an optical character recognition (or "OCR") program whereas the Government's own program has that capacity built in (id. ¶¶ 11, 34).
The Government responded to this initial bifurcation motion by claiming that defendants seek "to have this Court direct the government to produce discovery in a computer format they claim is more helpful or useful to the defendants" (Docket No. 164, Gov't Atty. Aff. ¶ 2). The Government notes that the VoiceBox system used by the Drug Enforcement Administration ("DEA," the investigating agency in this case) differs from the system used by the Federal Bureau of Investigation ("FBI") and thus the DEA's program has different reporting capabilities than the one used by the FBI (id. ¶ 9 & n.4). For example, the DEA system does not generate minimization data whereas the FBI system can do so (id. ¶ 17; see Docket No. 190, Gov't Atty. Further Aff. ¶ 2 (confirming that DEA cannot produce reports from its version of VoiceBox system software)). The IPRO system used by the United States Attorney's Office is "its national standard for all United States Attorneys' Offices," producing TIFF images that can be used in "Sanction," the Government's trial presentation tool (Docket No. 164, Gov't Atty. Aff. ¶ 10). The Government contends that the United States Attorney's Office did not have server space to retain an OCR copy of materials produced through the IPRO and such a duplication is cost-prohibitive (id.). The Government declines to provide the materials in their native format to prevent the disclosure of cooperators which was redacted when installed in IPRO (id. ¶ 12). The Government later reported that it was endeavoring to determine how to generate reports from the DEA's system that are sought by Ard (Docket No. 190, Gov't Atty. Further Aff. ¶ 2). The Government concludes that Ard and the other defendants here have "the data needed to assess whether a minimization challenge is advisable here" (id. ¶ 20, Ex. E (10 Day summary report)). The Government later moved for a Protective Order (Docket No. 199) where that redaction was incomplete and unredacted documents were inadvertently submitted to the defense, seeking return of discovery materials (the IPRO disc), which was granted (Docket No. 201). The Government later asserts that approximately 14,500 pages of documents were produced to the defendants in the manner at issue here (see Docket No. 269, Gov't Atty. Aff. ¶ 6).
In reply and reiterating what was argued at the oral argument for the motion to bifurcate, Ard challenged the assertion that the DEA and FBI would have different versions of the VoiceBox system, and, citing Barry Stewart from JSI Telecom, stated that more recent versions of VoiceBox can generate the reports sought by the defense (Docket No. 193, Ard Atty. Aff. ¶¶ 8-10). Ard then asked that the Government produce its user manuals and like materials for the VoiceBox system and identify person(s) knowledgeable of the DEA's system (id. ¶¶ 33, 32, 34).
Ard and the Government in reply papers continue the debate as to the capabilities of the Government to produce this material in manner sought by the defense (see Docket Nos. 193 (Ard), 197 (Government), 213 (Government), 214 (Ard)). Ard later submitted to Chambers an ex parte application for a subpoena to the Government's vendor, JSI Telecom, but that application was not granted.
In further reply, the Government reasserts the prohibitive costs and lack of computer storage space on the United States Attorney's Office's server to reproduce the data it provided in PDF format (Docket No. 269, Gov't Atty. Aff. ¶¶ 4-6). The Government argues that it produced minimization data (albeit not in the precise format sought by the defense) but by other means (id. ¶¶ 7, 10) and contends that, given the defense's heavy burden in asserting a minimization challenge, the Government should not bear the burden of submitting another version of this data to suit the defendants (id. ¶ 8).
Electronic Stored Information and ...