Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act

United States v. Salyer, Cr. No. S-10-0061 LKK [GGH], 2011 WL 1466887 (E.D. Cal. Apr. 18, 2011)

“Unlike the usual discovery dispute—not enough produced—the dispute between the parties [in this case] involves too much produced, in too many formats, and whether the defense has been given a fair opportunity within the parameters of an adversary system of criminal justice to make use of that discovery.”

Defendant Salyer, “the one-time head of a large food processing company” was charged with racketeering, falsification of records and antitrust violations.  The discovery in the case was immense: “It is probably no exaggeration to state that 1-2 terabytes of information are involved.”  The evidence in the case had been amassed from a number of sources and existed in a wide variety of formats, including documents that were OCR’d, scanned and produced in .pdf; electronic documents produced in text searchable files; paper records; the forensic image of a corporate database; and forensic images of computers seized from the relevant corporation (searchable only with special software).  Recognizing the potential difficulties that might arise, the court was tasked with advising on the impact of the discovery on the trial schedule.

In addition to the sheer volume of discovery compiled from many sources (and produced in many formats), several other “problems/issues” were identified that “complicated expeditious pre-trial review of the massive amounts of information” including that defense counsel lacked the resources to conduct a large scale review; that defense counsel was likely to have been “behind the technological knowledge curve when it comes to preparing an electronically based mega-case”; that defendant was the “sum total of the defense ‘corporate knowledge’” and as such needed to be substantially involved in the review of discovery (made more difficult by the need for defendant to acquire permission to travel to participate in that review and his need to return to his home by a set time each day); and the “inability to agree on the precise issues in dispute and the documents needed” a problem described by the court as related to defendant’s intent to present a broad defense “created out of alleged business custom and practice” rather than responding to the indictment allegations “head on.”

In its initial discussion of the volume and types of ESI produced the court noted the solution in a similar situation (where the discovery was placed in an online database by the government and access was provided to the defense attorneys) and reasoned that “[w]hen the amount of information in a criminal case reaches the hundreds of gigabytes/terabyte stage, the government should consider whether everyone is better served if this information is placed in a common database.”  Thus, in its analysis of how best to solve the discovery situation at hand, contemplation of a common database (containing all of the disparate evidence in one location) was seriously considered.  The court concluded that in the present case the government should not be compelled to contribute to the very substantial cost of creating a common database of evidence.  First, the court reasoned that there was “no tangible authority to compel such a contribution.”  Second, the court cited the substantial costs of such an undertaking.  Third, the court cited the lack of “clear understanding of what the defense hopes to accomplish by creation of a common (all-in-one) data base.”  And finally, the court reasoned that much of the discovery was already electronically available (albeit subject to the problems discussed above) and that the hard copy was well-organized such that with “sufficient pre-visit research” retrieval of specifically sought after information should be accomplished “without a great deal of difficulty.”  Moreover, the court noted that the government had been required to review its materials to identify any Brady/Giglio material, which the defense admitted resulted in a “treasure trove” of useable information.

Despite declining to compel the government to contribute to the creation of a common database, the court was sympathetic to defendant’s discovery dilemma.  Accordingly, the court turned to consideration of Title 18 USC 3006A:

(e) Services other than counsel.–
(1) Upon request.–Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application.  Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

Pursuant to the above cited statute, the court recommended that defendant be allowed to submit a CJA request for services to create a common database.  "The key balancing on a CJA request is concerned with the cost of the requested services in light of its reasonably expected benefit . . . In other words, would a retained counsel representing an adequately financed defendant reasonably expend the client’s monies for these services."  To be successful, the court explained, the defendant would be required to establish his indigency and his need.  “‘Need’” the court explained, would be judged “in terms of its necessity to the bringing of an effective defense.”  Specifically, the defendant must show that “an effective defense will be substantially impaired in the absence of such expenditures.”  Moreover, such a showing would require “real-life examples of his defense from his previous review of documents which could reasonably be viewed as a microcosm for an effective macrocosm defense based on a consolidation of the universe of evidence, and which could only be reasonably obtained if a common database was created.”

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