Electronic Discovery Law
Prosecution Not Required to Re-Produce Voluminous ESI in Categorized Batches
United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, 2011 WL 5448066 (S.D.N.Y. Nov. 4, 2011)
In this case, defendants were charged with crimes “arising out of an alleged conspiracy . . . to illegally rig bids, fix prices, and manipulate the market for investment instruments known as municipal derivatives.” Following the prosecution’s production of ESI, defendants sought to compel re-production in categorized batches relating to transactions with certain characteristics. Defendants’ motion was denied.
In the course of preparing for trial, the prosecution produced a large amount of electronic discovery. The information (the comprehensiveness of which was not in dispute), was “largely in searchable format” and included “searchable digests” of audio files. The Government also provided searchable metadata for the audio files and transcripts of the same when available. Despite this, defendants moved for an order, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1965), directing the Government to reproduce ESI in “categorized batches” that “related to transactions with certain characteristics.” Defendants “fram[ed] each of the four categories as including transactions that test or refute an aspect of the Government’s theory of collusion” and otherwise alleged that the evidence sought to be identified would be probative of their intentions and useful to impeach testimony of cooperating witnesses.
Taking up the issue, the court established that while Brady prohibits bad faith or deliberate efforts to conceal exculpatory material, "'it does not place any burden upon the Government to conduct a defendant’s investigation or assist in the presentation of the defense’s case.'" Specifically, “[t]he Government is under no general obligation to sort or organize Brady material disclosed to defendants"-- even when the material disclosed is voluminous. Moreover, defendants’ “bare, conclusory allegations” that the Government failed to identify Brady materials that it encountered during its review while "knowing full well that Defendants likely would be unable to find it once it was placed back into the mass of discovery later produced" did not justify ordering the Government to identify and organize Brady materials in its production. The court acknowledged, however, that some courts had invoked their discretionary authority to require the Government to identify Brady materials within voluminous productions.
The court distinguished the present case from United States v. Salyer, Cr. No. S-10-0061 LKK (GGH), 2010 WL 3036444 (E.D. Cal. Aug. 2, 2010), where the defendant’s motion for the identification of Brady material was granted. That case involved an individual defendant who was jailed pending trial (and thus was largely unable to assist in his defense) and was represented by a “relatively small defense team.” Further, there was no parallel civil litigation or corporate assistance to find necessary documents. In the present case, however, there were “several basic differences which compel[led] an opposite result,” including that the already disclosed materials were searchable, that defendants had access to corporate assistance, that there was ongoing parallel civil litigation and “multiple defendants” with “overlapping discovery needs,” that defendants were not incarcerated, and that “there [could] be no straight-faced claim of a ‘small defense team.’” Additionally, the court noted that the prosecution had taken “additional steps to relieve some of the burden” and that there was no assertion that defense counsel lacked access to the disclosed materials, or that they did not contain the information defendants sought to compel the Government to identify.
Accordingly the court concluded that Defendants had “failed to persuade the court than an exception to the general rule is warranted” and denied the motion.
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