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June 21, 2017 Practice Points

Motion to Compel Government to Identify Exculpatory Evidence When Government’s Discovery Materials Are Voluminous

Highlights from several cases that arm defense attorneys with an additional weapon in the fight against voluminous productions from the government.

By James R. Wyrsch – June 21, 2017

This Practice Point highlights several cases that arm defense attorneys with an additional weapon in the fight against voluminous productions from the government—motions to compel identification of exculpatory evidence.

Several courts have held that the government must do more than just produce a voluminous file to satisfy its Brady obligations. In U.S. v. Sayler, 2010 WL 3036444, (E.D. Cal. 2010), the court held that the government cannot meet its Brady obligations by providing the defendant with access to 600,000 documents then claiming that she should have been able to find exculpatory information in the haystack. See also, U.S. v. Hsia, 24 F. Supp. 2d 14, 29–30 (D.D.C. 1998), revs’d in part on other grounds, on 76 F.3d 517 (D.C. Cir. 1999).

In other cases, the government has identified “hot documents,” and the courts have held that this was sufficient to meet Brady obligations. In U.S. v. Skilling, the government produced a database that comprised several gigabytes of data, including millions of separate files extending to several million pages in length. 554 F.3d 529, 577 (5th Cir. 2009). The court found that the production satisfied the government’s Brady obligations when the government: (i) produced a file that was electronic, indexed, and searchable; (ii) highlighted particularly relevant documents; (iii) produced a set of “hot documents” it thought was important to its case or potentially relevant to the defendant’s defense; (iv) created indices to these and other documents; (v) and provided the defendant with access to various databases concerning prior litigation involving Skilling’s company.

Similarly, in U.S. v. Vujanic, 2014 WL 3868448 (N.D. Tex. 2014) the government, after providing the defendant with a voluminous file, took additional steps to satisfy its Brady obligation. Specifically, the government: (i) provided a disk that contained trial exhibits that it used in a 2011 trial of codefendants charged in the case; (ii) provided other data disks that were labeled according to their contents; (iii) identified a coordinating discovery attorney as a resource for accessing data disclosed in connection with the 2011 trial of the codefendants; (iv) stated that it would identify the sources of seized items; and (v) advised Vujanic counsel that all email and instant message chats involving Vujanic were located within eight terabytes or two terabytes of data within the entire discovery. The court also granted a motion for approval of Criminal Justice Act funds so that the coordinating discovery attorney could provide the same services as in the previous case. See also, to same effect, U.S. v. Ohle, 2011 WL 651849 (S.D. N.Y. 2011); U.S. v. Shafer, 2011 WL 977891 (N.D. Texas 2011).

James R. Wyrsch is with Wyrsch Hobbs & Mirakian, PC in Kansas City, Missouri.

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