The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Defendant Damian Ard is one of 24 defendants charged with various cocaine related charges in this multi-count, Third Superseding Indictment. Discovery in this case began in the fall of 2010. Its serpentine path has lead to the motion presently before this Court: Ard's objections to the Honorable Hugh B. Scott's Report and Recommendation, which, in short, advises this Court to deny Ard's motion for discovery-related sanctions against the Government.*fn1 For the following reasons, Judge Scott's decision is adopted in accordance with this Order.
2. Although the procedural background of this case is laid out in Judge Scott's Report and Recommendation and familiarity therewith is presumed, a summary of this topic remains necessary.
3. Pursuant to various wiretap orders, the Government has amassed a large amount of information pertaining to the phone numbers associated with the Defendants in this case. To collect and collate these data, the Government uses a system called VoiceBox. Ard contends that this system produces user-friendly data. That is, data in spreadsheet form that can be easily managed, searched, sorted, and organized. But the Government's initial voluntary discovery did not provide the data in this format. As such, Ard's attorney, on behalf of the other defendants, requested the data in its native, user-friendly format.
4. Initially, the Government represented that it could not produce the data in the desired format and that in instances where it had in the past, the data came from the FBI, not the DEA, which was the agency that conducted the investigation here. Although the FBI also uses VoiceBox, the Government represented that the DEA used a different verison of the software.
The Government then checked with the DEA and was told that it "does not have the capacity to produce a report of the type" requested by Defendants. (Docket No. 164.) Ard disputed this contention, and several months elapsed with the Government investigating the capabilities of the VoiceBox system. On April 15, 2011, the Government provided further discovery materials, including "minimization data" and a disc with "voluminous" discovery. Although still not searchable, the data were in spreadsheet form. Accordingly, the defense draws the conclusion that the Government apparently did have this capability all along. Yet the Government provides no explanation for the discrepancy between its current production and its former representation that the DEA's system was not capable of producing spreadsheets.
5. The defense objected further still. Comparing the spreadsheets that it received here to those that the Government has produced in the past (ostensibly from the FBI), Ard contended that the data had been intentionally manipulated to render the data "useless" to the defense. Indeed, the output from the April 15 production was still not searchable and was in a low resolution format. Curiously, the layout of the previous disclosures from the FBI's system and the disclosures here was exactly the same. The only differences were in quality and ability to manipulate. Ard proffers an explanation for this discrepancy: he believes the two systems are in fact the same. He contends that the data here were printed from the VoiceBox system, scanned back into digital format, and only then turned over. This process would lower the quality of the documents and remove the ability to search or otherwise manipulate the data. Of course, the data could be reconverted into a usable format. But this would take either manual entry or the expense of a third-party vendor.
6. In response to these concerns, Judge Scott issued a comprehensive discovery Order on September 8, 2011. Noting the lack of guidance from the Federal Rules of Criminal Procedure regarding the discovery of Electronically Stored Information ("ESI"), and the relatively nascent aspect of this issue in criminal proceedings, the court laid down the following rule for this case: "The Government is either to reproduce its disclosure in a searchable format (PDF, for example ) or in the native format, indicating the manner of that reproduction." (Docket No. 291, at 14) (parenthesis in original). Judge Scott concluded, "[T]he Government is to bear the burden of reproducing these ESI materials in a fashion that defendants can retrieve and manipulate as discussed in this Order." (Id., at 17.)
7. In an effort to comply with this Order, on September 29, 2011, the Government provided four discs of data in PDF, searchable format. In an affidavit submitted the following month, on October 11, 2011, the Government indicated that it "believes that the discovery in the September 29, 2011 correspondence fully complies with Magistrate Judge Scott's order insofar as wiretap pleadings, reports of investigation, and other items of discovery, are concerned. The government . . . is in the process of determining the method of compliance with the order insofar as the Voicebox data is concerned. Those efforts continue." (Docket No. 319, at ¶ 3.)
8. This did not satisfy Defendants. The data, according to them, was still not capable of manipulation and could not be exported to create new files. It was also missing text messages and minimization data. Further, the defense contends that there was no need to engage in any "process" to determine the "method of compliance" -- all the government had to was turn over the data in its native format.
9. The dispute continued, and the defense moved to amend or correct the September 8, 2011 Order to reflect what it thought should have been required of the Government. At oral argument on this motion, the Government, for the first time, asserted that it was concerned about possible data corruption if the data were turned over in the form requested by defendants. In other words, if the data were tuned over in a format that could be manipulated, that data might be lost or altered.
10. Thereafter, Judge Scott again issued a comprehensive Order, this time denying the defense's motion to amend or correct the previous Order. Judge Scott found that: (1) The Government need not compile data in the form requested by Defendants; (2) the Government need not produce data using functions such as issue tagging, sticky notes, data fields, and unitization; and (3) the Government need not produce the data in its native format. That decision was appealed to, and affirmed by this Court. (See Docket No. 436.)
11. A few months after that Order, the Government informed Judge Scott, in a letter dated January 4, 2012, that it believed it had complied with the Order via its September 29, 2011 production. Again raising the prospect of corruption, it also noted that:
As previously set forth to the Court, the government has undertaken to determine whether the Voicebox data can be exported from Voicebox to Excel, or some other software, for discovery purposes, with the following functionality: so that defense counsel can perform various manipulations of the data, e.g., searching it, sorting or filtering it, and summing its numerical portions, while "locking" the data so the data cannot be changed. This letter is ...