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United States v. Woods

United States District Court, W.D. Arkansas, Fayetteville Division

November 3, 2017



          Timothy L. Brooks, Judge.

         Currently 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 (Doc. 116);
• 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).

         For the reasons given below, all three of these Motions are DENIED.

         I. JOINT MOTION TO COMPEL (Doc. 91)

         On 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 implement them.

         The 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. at 6-7.

         Defense 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.[1]

         To be 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 DENIED.

         II. MR. SHELTON'S MOTION TO COMPEL (Doc. 129)

         On 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).

         With 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 Scheduling ...

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