United States District Court, W.D. Arkansas
OPINION AND ORDER
TIMOTHY L. BROOKS DISTRICT JUDGE.
before the Court are Defendant Randell Shelton's Motion
to Compel (Doc. 270) and the Government's Response (Doc.
276) in opposition; the Government's Motion to Quash
In Personam Subpoenas (Doc. 271) and Mr.
Shelton's Response (Doc. 275) in opposition; and the
Government's Motion to Quash Request for Production of
Certain Information (Doc. 273) and Mr. Shelton's Response
(Doc. 277) in opposition. Each of these three Motions is
GRANTED IN PART AND DENIED IN PART as
hearing is set to be held in this matter at 9:00 a.m.
tomorrow, January 24, 2018. The purpose of this hearing is to
receive evidence on the matter of 79 covert recordings made
by a Government witness named Micah Neal (recordings which
were disclosed by the Government to the Defendants in this
case on November 15, 2017, only a few weeks before trial was
set to begin in this case), and on the related matter of the
laptop that FBI Special Agent Robert Cessario used to access
these recordings. Each of the instant Motions pertains in
some way to tomorrow's hearing. All three Motions were
filed last week on January 19, and all three Responses
thereto were filed yesterday on January 23. These Motions are
now ripe for decision.
MR. SHELTON'S MOTION TO COMPEL (Doc. 270)
January 19, Mr. Shelton filed a Motion to Compel, asking this
Court to order the Government to produce to him various
materials. Mr. Shelton's Motion begins by stating that
"[i]n accordance with Local Rule 7.2, " Mr.
Shelton's counsel "have in good faith conferred or
attempted to confer with the government's attorneys in an
effort to resolve this dispute, but the government's
attorneys have not responded to them regarding these issues
and as a result the parties are unable to resolve their
disagreement without the intervention of the Court."
See Doc. 270, ¶ 1. The Court would observe at
the outset that Local Rule 7.2(g) requires parties filing
discovery motions to state that they "have conferred in
good faith on the specific issue or issues in dispute"-
not that they have attempted to confer. Mr.
Shelton's Motion does not provide any details of this
conferral, but the Government's Response describes an
email from Mr. Shelton's counsel to the Government on
Friday, January 5, a Government email in response to Mr.
Shelton's counsel on Monday, January 8, a Government
discovery production on January 12, another email from Mr.
Shelton's counsel to the Government at 9:08 p.m. on
January 18 requesting additional discovery, a Government
email in response at 10:00 a.m. on January 19, and another
email from Mr. Shelton's counsel half an hour later,
followed by the filing of the instant Motion later that same
day. See Doc. 276, ¶¶ 4-10. Under ordinary
circumstances, this is not the sort of dialogue that this
Court would consider sufficient to satisfy Local Rule
7.2(g)'s requirement of having "conferred in good
faith" prior to filing a motion to compel. Rather, it
has the appearance of having been arbitrarily cut short by
the movant. The Court also observes that despite Local Rule
7.2(a)'s requirement that a motion like this one be
accompanied by a "brief consisting of a concise
statement of relevant facts and applicable law, " Mr.
Shelton's Motion does not cite to a single rule, statute,
order, case, or other legal authority to explain why he is
entitled to any of the discovery he seeks.
these deficiencies might be sufficient grounds to deny Mr.
Shelton's Motion. See Local Rule 7.2(g). Here,
the Court recognizes that the evidentiary hearing for which
Mr. Shelton seeks the requested materials was less than a
week away at the time he filed his Motion, and that Mr.
Shelton's counsel was thus operating under an unusual
time crunch. Accordingly, the Court is not going to deny Mr.
Shelton's Motion summarily. But Mr. Shelton's
requests will nevertheless largely be denied, because most of
them are far too broad. And the Court highlights the
aforementioned deficiencies simply to observe that this
problem of overbreadth might have been avoided if the Motion
had been preceded by a more meaningful conferral process and
was accompanied by citation to legal authority.
Shelton requests five sets of material. The first set is
"all of Cessario's text messages from February 8,
2016 to present in an unaltered, unedited, complete, native
or source format." (Doc. 270, ¶ 5). Mr. Shelton
does not explain, and the Court does not understand, how Mr.
Cessario's actions with respect to the recordings and the
laptop at issue in this hearing could entitle Mr. Shelton to
every single text message Mr. Cessario has sent or received
over the last two years. This request is far too broad.
Therefore it will be denied.
Shelton's second request is for "all emails from
both Cessario's FBI email accounts . . . and from his
personal [Yahoo] email account that are in the
government's possession that refer to this matter."
See Id. at ¶ 7. It is not clear to the Court
what Mr. Shelton means by "this matter"-the
relatively narrow matter of the Neal recordings or of Mr.
Cessario's laptop, or alternatively, the entire
investigation of which the instant case is but one relatively
small part, or instead, something somewhere in between these
distant poles. It is also not clear to the Court whether Mr.
Shelton is simply asking the Court to compel the Government
to comply with its preexisting and ongoing discovery
obligations in this case, see Doc. 248, p. 2, or
whether he is asking for something more far-reaching than
that. In either event, he does not explain why Court
intervention is even necessary. Therefore, this request will
Shelton's third request is for "all emails from any
other case agent or government employee that references the
government's investigation or prosecution of this
matter." (Doc. 270, ¶ 7). This request is denied
for the same reason his second request is denied.
Shelton's fourth request is for "all rough notes in
the government's possession regarding alleged
co-conspirator Micah Neal." Id. at ¶ 8.
The Court does not know what Mr. Shelton means by "rough
notes." But as the Government correctly points out, this
Court has previously ordered that "[e]xcept as provided
in Federal Rule of Criminal Procedure 16(a)(1), the
Government is not obligated to disclose reports, memoranda,
or other internal government documents made by an attorney
for the government or other government agent in connection
with investigating or prosecuting the case, " (Doc. 59,
p. 6), and the Eighth Circuit has previously observed that
"[r]eports, memoranda, or other internal government
documents created by a government agent in connection with
the investigation or prosecution of the case are immune from
discovery, " United States v. Robinson, 439
F.3d 777, 779-80 (8th Cir. 2006). Mr. Shelton does not offer
any explanation as to why he should be entitled to the
production of work product that is ordinarily off-limits,
other than to hint, without elaboration, that it has
something to do with Mr. Cessario's "destruction of
evidence from his computer." See Doc. 270,
¶ 8. The Court does not see the connection. Therefore,
this request is denied.
Shelton's fifth and final request is for "any
documents, memoranda, emails, or other communications of any
kind that are in the government's possession and that
reference the health information that was allegedly the
basis, at least in part, for Cessario to 'wipe' his
computer on December 7, 2017." Id. at ¶ 9.
Unlike the previous four requests, this request is specific
enough to put the Government on notice of what is being
requested. And unlike the previous four requests, it is
narrow enough to encompass only materials that are relevant
to tomorrow's hearing. The Government states in its
Response that "the United States is not in possession of
any documents or memoranda regarding the medical condition of
SA Cessario in addition to" what it has already given to
Mr. Shelton. See Doc. 276, ¶ 48. But the Court
will grant this request, to the effect that if the Government
comes into possession of such documents or memoranda at some
point in the future, then they must be turned over to Mr.
Shelton, subject to the Protective Order (Doc. 14) in this
GOVERNMENT'S MOTION TO QUASH IN PERSONAM
SUBPOENAS (Doc. 271)
January 16, Mr. Shelton's counsel caused subpoenas to be
served on Kenny Elser, Kyra Jenner, and Aaron Jennen, all of
whom are attorneys for the Government in this case,
commanding them to testify at tomorrow's hearing. Three
days later, the Government filed a Motion to Quash these
subpoenas. Mr. Shelton filed his Response yesterday. The
Court will grant the Government's Motion with respect to
Ms. Jenner, because Mr. Shelton ...