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United States v. Woods

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

April 5, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
JONATHAN E. WOODS; OREN PARIS III; and RANDELL G. SHELTON, JR. DEFENDANTS

          OPINION AND ORDER

          TIMOTHY L. BROOKS JUDGE

         Last year the parties in this case were embroiled for a while in a discovery dispute regarding an August 4, 2017 production by the Government to the Defendants of a very large number of documents on a one-terabyte hard drive. In a written Order filed on November 3, 2017, this Court observed that "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 Doc. 150, pp. 2-3. The Court specifically denied this request in that same Order, explaining that although "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, " the Court would not "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." See Id. at 3-4 (emphasis in original).

         At a pretrial hearing on November 30, 2017, counsel for Defendant Randell Shelton inquired of the Court about that previous Order, and the following exchange took place between Chad Atwell (counsel for Mr. Shelton), Kenny Elser (counsel for the Government) and the Court:

MR. ATWELL: Your Honor, just briefly. I want to understand the Court's order on that. On that one terabyte hard drive, I understand the Court hasn't heard enough about [it] at this point. But was the Court's ruling that that one terabyte hard drive will be excluded and all the information thereon unless previously produced prior to that August 4th date?
THE COURT: Right. I'm sure there's a better way to articulate it, that I'm incapable of right now, but generally speaking, my understanding is that that contained 4.3 million documents of which 500, 000 had been previously produced. The Court's ruling is if the residual number is 3.8 million that were not produced prior to that date, the government may not introduce those.
MR. ELSER: Your Honor-
MR. ATWELL: And I wanted to clarify-thank you. I wanted to clarify, Judge, that that would include if the government happened to excise bits and pieces as they figured out what was on there and later produced it.
THE COURT: You're going to have to give me an example. I don't understand that.
MR. ATWELL: Well, I didn't bring my big terabyte today. But, for example, obviously understanding that if it was previously produced and it's duplicated on that hard drive, then that's coming in if it otherwise comes in subject to the rules. But if that is out and Mr. Elser stated in his October letter they weren't going to use any of that information, then if that information is then contained in a smaller form disclosure say, yet, another month later, then it is still being excluded by the Court: It's not the form of the disclosure; it's the information contained on the terabyte?
THE COURT: Well, I don't know that I can make a broad, sweeping ruling like that. For example, documents have been subpoenaed for trial. I don't know of any reason why those would not be admissible at trial right now. I don't know either way, but let's say that those documents were part of the 3.8 million previously nondisclosed documents. I can see how there would be an issue that that wouldn't be subject to the ruling that the Court has made, but I don't know.
MR. ELSER: Your honor, may we be heard on that?
THE COURT: Yes.
MR. ELSER: So the government's representation, and Mr. Atwell continues to try to twist it in pleadings and all, and it was that unless separately produced, the government would not use anything on ...

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