United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
Timothy L. Brooks, Judge.
before the Court are:
• The Expedited Joint Motion to Compel Discovery (Doc.
91) filed by Defendants Jonathan Woods, Oren Paris, and
Randell Shelton; the Government's Response (Doc. 103) and
Supplemental Response (Doc. 113); and Mr. Shelton's Reply
• Mr. Shelton's Motion to Compel Production of
Unredacted Discovery Materials (Doc. 129); and the
Government's Response (Doc. 134); and
• Mr. Shelton's Motion for a Bill of Particulars
(Doc. 101); the Government's Response (Doc. 110); and Mr.
Shelton's Reply (Doc. 117).
reasons given below, all three of these Motions are
JOINT MOTION TO COMPEL (Doc. 91)
March 28, 2017, all three Defendants were arraigned on the
original Indictment in this case. At their arraignments, all
three Defendants requested discovery from the Government
under Fed. R. Crim. P. 16. See Docs. 15, 19, 23.
Within a week, the Government made its initial production of
discovery to the Defendants, see Doc. 91, p. 3.
Since then, the Government has made additional discovery
productions, but the one that is the subject of this Motion
is an August 4 production "of nearly 4.3 million
files" of electronically stored information
("ESI") on an external hard drive. See Id.
at 2. The Defendants contend that the hard drive is
"nothing more than an inoperable paperweight"
because its extremely voluminous contents are not
electronically searchable without purchasing
"prohibitively expensive" litigation software.
See Id. at 4-6. The Government's Response points
out, first, that this litigation software and accompanying
instruction manual would cost about $1, 400.00 total to
purchase. See Doc. 103, p. 4 n.4. Then the
Government proposes several alternative free solutions to the
Defendants' search problems, but Mr. Shelton's
subsequent Reply indicates that these alternative proposals
did not work for his attorneys when they attempted to
Government's Supplemental Response further informs the
Court that to the extent the August 4 hard drive
"contained records and documents not provided separately
in the initial and supplemental discovery productions, the
Government will not offer such records and documents in
evidence and will rely solely on the records and documents
produced separately . . . ." (Doc. 113, ¶ 1). The
Government contends that "the productions it has made
separate from the one terabyte hard drive fully satisfy the
Government's discovery obligations in this case."
Id. Mr. Shelton's counsel expresses frustration
over this development, arguing that the Government has
"sent defense counsel on a fool's errand, requiring
them to spend dozens of hours in futile attempts to review
unreviewable files, " and that this "demonstrates
nothing short of bad faith" on the part of the
Government. See Doc. 116, pp. 2-3. Accordingly, Mr.
Shelton's counsel asks the Court to "exclude all
evidence that was not produced prior to August 4, "
other than "any required Brady material or
exculpatory and impeachment evidence." See Id.
counsel's frustration over wasted time is understandable,
but the Court does not believe these facts support a finding
of bad faith. Rather, in essence, it would appear to the
Court that the Government attempted to provide defense
counsel with a separate, additional production of materials
that, while relevant, it was not even required to produce
under the Federal Rules or this Court's orders. And
although defense counsel contends that dozens of hours were
wasted in their failed attempts at availing themselves of the
Government's generosity, the Court does not see how that
is any more the fault of the Government than of the
Defendants or their counsel-who, after all, decided to devote
"dozens of hours" to in-house computer
troubleshooting by attorneys instead of simply paying $1,
400.00 for software that would presumably have obviated the
need for such efforts.
clear, given the Government's representations, the Court
does not believe that the August 4 hard-drive
production would be independently sufficient to satisfy any
of the Government's discovery obligations in this case.
But the Court is not going to sanction the Government for
giving (or trying to give) the Defendants more than they are
entitled to, so long as the Government produces the
information to which the Defendants are entitled in
a manner that is compliant with its legal obligations and
reasonable under the circumstances. Accordingly, the
Defendants' Joint Motion to Compel will be
MR. SHELTON'S MOTION TO COMPEL (Doc. 129)
October 12, see Doc. 129-1, p. 4, the Government provided the
Defendants with text messages that had previously been
exchanged between an FBI agent in this case and the lawyer
for an informant who is not a party to this case,
see Doc. 129, ¶ 9; Doc. 134, ¶ 3. The text
messages were provided as "potential Jencks
material or possible impeachment material." See Doc.
129-1, p. 4. Portions of those text messages were redacted.
Mr. Shelton has filed a Motion asking this Court to
"enter an order compelling the government to produce
without further delay the full and complete set of unredacted
text messages . .. from February 1, 2016, to present."
(Doc. 129, p. 5). The Government opposes this Motion,
contending that "[t]he redacted messages are not
relevant to this case, and are neither Jencks nor
Giglio materials." (Doc. 134, ¶ 9).
respect to timeliness, the Court disagrees with Mr.
Shelton's characterization of this production as
"late, " see Doc. 129, ¶ 12, or
"delay[ed], " see Id. at p. 5, given that
the Scheduling Order in this case requires production of
Jencks material "by not later than immediately
after the witness has testified on direct examination"
at trial, and production of Giglio material "by
not later than immediately prior to the testimony [at trial]
of the witness to whom such material relates."
See Doc. 59, p. 3. Given that the trial of this
matter is currently set to begin no earlier than December 4,
see Doc. 58, p. 1, it would appear to the Court that
the Government made these disclosures roughly two months
earlier than it was required to do so. This is not improper;
it is commendable, and it is consistent with the