The opinion of the court was delivered by: Hon. Hugh B. Scott
Before this Court are two motions seeking reconsideration or amendment to two discovery Orders entered by this Court (Docket Nos. 291, 293). The first motion (Docket No. 308*fn1 ) by defendant Damian Ard and others joining him*fn2 (hereinafter referred to collectively as "Ard") seek to amend and correct the Order of September 8, 2011 (Docket No. 291), which addressed production of certain electronically stored information (or "criminal ESI"), see also United States v. Briggs, No. 10CR184, 2011 U.S. Dist. LEXIS 101415 (W.D.N.Y. Sept. 8, 2011) (Scott, Mag. J.). Ard seeks to amend and correct this criminal ESI Order to illuminate the manner in which certain specific types of electronically stored items defendants sought should be produced (Docket No. 308).
Their second motion (Docket No. 316*fn3 ) seeks to reconsider the Order of September 9, 2011 (Docket No. 293), which addressed omnibus discovery motions filed or joined by the defendants, wherein the moving defendants now contend that certain issues were not considered either by the Government or this Court.
Familiarity with those Orders, and other prior proceedings, is presumed.
Response to the motion to amend and correct was due by October 11, 2011, and the argument of this motion initially was set for October 14, 2011 (Docket No. 311). On October 6, 2011, after defendants filed the motion for reconsideration (but prior to the Government's response, Docket No. 319, wherein it requested in part to adjourn its submissions), the Court set responses to that motion to be due by October 24, 2011, and rescheduled argument of both motions on October 26, 2011 (Docket No. 317), and the motions were argued and deemed submitted on October 26, 2011.
Ard and the 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).
ESI Discovery Order and Defense Motion to Amend and Correct It, Docket No. 308
The ESI Order commanded the Government to either reproduce its disclosure to defendants in a searchable format (in PDF, for example) or in its native format, at the choice of the Government (Docket No. 291, Order of Sept. 8, 2011, at 14), see Briggs, supra, 2011 U.S. Dist. LEXIS 101415, at *23-24, with the Government to bear the burden of reproducing these ESI materials in a fashion that defendants can retrieve and manipulate them as discussed in that Order (id. at 17).
Ard now moves to correct and amend this Order to differentiate the different areas of disclosure and discovery involved and to specify the methods for the Government's production of specific categories of materials (Docket No. 308, Ard Motion to Correct, at 1).
In particular, Ard identifies four categories of discovery items that need specific care, including an item Ard contends was not addressed by either the Government or this Court in Ard's earlier motion (id. at 9). First, Ard seeks a spreadsheet compiling the wiretap data and presenting the material in HTML formatting to that spreadsheet (id. at 1-3). Second, Ard wants the Government to implement fully the functionality of the IPRO system it has so that all documents can be processed through an optical character recognition (or "OCR") process (id. at 3-6). Among the features Ard claims are not used by the Government from IPRO is issue tagging, sticky notes, creation of data fields, and unitization of the compiled documents (id. at 4-5). Third, Ard seeks full-text searchability for the documents produced, either by producing them in their native file formats as a Word or WordPerfect document or creating directly generated PDFs for these items (id. at 7). In summary, Ard wants the Court to differentiate between different categories of production, with data from the VoiceBox system produced in an Excel-like spreadsheet; scanned images with unitized documents, Bates stamped, and placed in appropriately named folders; and text material in native formats (id. at 8). Finally, Ard notes that neither the Government nor this Court considered his motion regarding disclosure of settings for VoiceBox necessary to interpret the call data (id. at 9, citing to Docket No. 225, Ard Motion ¶¶ 53-55, 58-62). The original motion sought documentation of the settings of the VoiceBox recording sessions for minimization and auto minimization and for the "Put Away" function or a like setting that permits recordings to continue although not monitored (Docket No. 225, Ard Motion ¶¶ 53-55). He also sought session event summaries for each VoiceBox recording filtered either for minimization events or "put away" events (id. ¶¶ 58-59), and session history reports filtered for minimization, "put away," and "off hook" transmissions that were intercepted (id. ¶¶ 60-62).
Initially, the Government responds that it has produced DVDs processed with optical character recognition (or "OCR") in compliance with the ESI Order (Docket No. 319, Gov't Atty. Aff. ¶¶ 2-3; Docket No. 325, Gov't Consol. Response at 18).
Ard replies that the Government has not responded to this motion (Docket No. 330, Ard Reply at 1).
Defense Motion to Reconsider Docket No. 293 Order, No. 316 Ard then moved to reconsider Docket No. 293 Order because certain specific discovery requests made in their initial joint omnibus Motion were not addressed by the Order or were addressed as to other, non-joining defendants and Ard now seeks to highlight points raised in their initial joint motion (Docket No. 316, Jt. Motion at 1-2). First, Ard seeks statements of a co-conspirator which will be relied upon at trial by the Government either to show the existence of a conspiracy or to justify admissibility of hearsay testimony (id. at 2-3). Next, Ard is not satisfied with the scientific evidence produced by the Government (cf. Docket No. 293, Order at 5); he contends that he requested specific tests from the databases contained in the testing equipment to compare the samples with databases of known substances (Docket No. 316, Jt. Motion at 3-5). The Government's production of scientific materials did not include written notes, reference materials (id. at 5). Ard contends that the Government intends to produce its expert disclosure only upon the condition that defendants stipulate to concede elements of the offense regarding the nature of the seized materials (id.).
Next, Ard wants to know which Grand Jury rendered the Superseding Indictments since it had a different foreperson than was identified for the initial Indictment (id. at 6-7). Ard wants Grand Jury materials (not necessarily the minutes) establishing that either the same Grand Jury which rendered the initial Indictment rendered its Superseding Indictments or that a full presentation of the evidence was given to a new Grand Jury that rendered the Superseding Indictments. Ard also wants to know whether the Grand Jury was instructed as to the law. (Id.).
Ard also wants the visual and audio identification procedures used, despite the Government's assertion that its intention is not to introduce a photographic array or like at trial (id. at 8). As for documents, Ard wants the Government to specifically identify which documents it intends to use at trial rather than relying merely upon the mass production of materials and claiming generally that all would be used as evidence (id. at 8-10). Ard objects to the Government withholding witness statements on the claim that those statements (even those favorable to the defense) are Jencks Act materials not subject to pretrial disclosure (id. at 10-12).
The key omission for Ard is the fact that the Court did not address the extensive, unapproved redaction of wiretap transcripts and search warrants (id. at 12-13).
Finally, Ard disagrees with the Government's definition of "exculpatory" materials under Brady and takes a broader view of what should be produced, aside from Jencks Act materials under Brady, and faults the Order for not addressing this point (id. at 14-15; see ...