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United States v. Giron

United States District Court, D. North Dakota

December 18, 2017

United States of America, Plaintiff,
Michael Arthur Giron, a/k/a Michael Geron, Defendant.

          ORDER RE DEFENDANT'S DISCOVERY MOTIONS AT DOC. NOS. 33, 46, 58, 63, & 71

          Charles S. Miller, Jr., United States Magistrate Judge

         Defendant is charged in this criminal proceeding arising out of the protests over the Dakota Access Pipeline with the offenses of engaging in civil disorder and using a fire to engage in civil disorder. Presently, the trial is scheduled for April 20, 2018.

         On April 21, 2017, and pursuant to the stipulation of the parties, the courted entered its Stipulated Discovery Order and Protective Order (“Stipulated Discovery Order”). What is now before the court is a series of discovery motions made by the defendant that seek additional court orders, some of which are already the subject of the Stipulated Discovery Order and some that go beyond what the court has already ordered.


         In response to this motion, the Government states it has produced the items and material requested by defendant to the extent the government has them in its possession. In reply, defendant acknowledges the government has recently turned over a massive amount of information that his attorneys have not yet been able to review, so he is not in a position to disagree with what the government has stated. In light of this, defendant agrees no further action is required by the court now, but he wishes to preserve his right to renew his requests later if it appears that what the government has turned over is incomplete.

         Given this state of affairs, defendant's Motion to Compel Discovery (Doc. No. 33) is DENIED WITHOUT PREJUDICE to the filing of another more specific motion.


         A. Introduction

         Defendant in this motion seeks to discover certain information relating to any expert opinions that may be offered by the government at trial and requests that the court order it be turned over at least 30 days prior to trial. The government agrees with some of the requests and objects to others. The government also requests that anything the court orders with respect to the disclosure of expert evidence be made reciprocal. Defendant's requests will be addressed seriatim.

         B. Particular discovery requests re expert opinions

         1. All materials that served as a basis, in any way, of a government expert's opinion, including photos, field notes, video, chemical analysis, witness statements, trace analysis, other scientific testing, expert treatises, information for other experts, logs, inventories, audio recordings, and all other material reviewed, considered, generated or produced during the formation of the opinion

         Under Fed. R.Crim. P. 16(a)(1)(G), the government is required to provide a “written summary” of any expert testimony it intends to offer once the defendant makes a request for the information. The summary “must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.” Most of what defendant seeks appears to fall within what Rule 16(a)(1)(G) already requires. And, since the government has indicated it will timely comply with the Rule's requirements (and is required to do so in any event), no further action is required by the court at this point.[1] However, to the extent defendant's request can be read as requiring more than what Rule 16(a)(1)(G) requires (e.g., identifying everything the expert reviewed regardless of whether it forms a basis for his or her opinions), defendant's request is denied.

         2. Each Government expert's resume

         Fed. R. Crim. P. 16(a)(1)(G) already requires that the government provide a summary of the qualifications of any expert it intends to call once the defendant makes a request for this information. In any event, the government agrees to provide resumes on a timely basis; hence, no court action is required.

         3. Training materials, texts, treatises, memorandum, handouts, or other writings or police training materials utilized, considered or relied upon to reach or justify expert opinions rendered at trial by any government witness that will be tendered as an expert whether affiliated with law enforcement or not

         The government objects to this request to the extent it can be construed as requiring production of every treatise, training material, handout, etc., ever seen by the expert in his or her training and upon which the expert's general professional knowledge is based. The government contends this goes beyond what is contemplated by Rule 16. The court agrees. The government need only disclose pursuant to Rule 16(a)(1)(G) the material upon which the expert is expressly going to rely upon as a basis for his or her opinion. Further, it is sufficient that the government identify that material. If the identified material is not reasonably available to the defendant or is otherwise discoverable under subsection (a)(1)(E), the court will consider a motion by defendant for production of a copy if the government does not voluntarily provide it. Consequently, no further 4. Any and all case files, reports, statements, memorandum, notes, video or audio tape recordings relating to any prior cases or investigations upon which law enforcement government witnesses relied upon to render any expert opinions in this case The government objects to this request on the grounds that its is vague and overbroad. While that might be, there is no reason to believe that the government will not identify in its summary of any expert witness the material relied upon for the opinions. Consequently, no further court action is required.

         5. Any other information which may serve, to any extent, as the facts or data underlying any expert opinion

         The government objects to this request on the grounds that it is vague and overbroad. As noted earlier, Rule16(a)(1)(G) requires that the government provide a summary of its anticipated expert testimony and that the summary set forth not only the witness's opinions, but also the “bases and reasons” for the opinions. To the extent this request seeks something more, it is denied.

         C. Defendant's reciprocal disclosure obligations and the timing of the expert disclosures

         In the Stipulated Discovery Order, the government made a formal request that defendant make comparable expert disclosures pursuant to Rule 16(b)(1)(C). Also, in its response to this motion, the government has repeated that request. Hence, the court's order will address the discovery obligations of both the government and defendant.

         Defendant requests the government be required to make its disclosure of expert evidence thirty days prior to trial. The government agrees to the thirty days, but requests the same time deadline be set for the defendant. The court concludes this is appropriate and also will order a time deadline for disclosure of rebuttal expert evidence. See United States v. Petters, No. 08-364, 2009 WL 10761999, at *3 (D. Minn. March 26, 2009) (ordering deadlines for initial and rebuttal expert disclosures).

         D. Court's order

         Based on the foregoing, defendant's motion (Doc. No. 46) is GRANTED IN PART. The government must comply with the requirements of Rule16(a)(1)(G) and defendant must comply with the requirements of Rule 16(b)(1)(C). And, since these requirements are clear enough, there is no need to parse them further now, particularly given the generality of defendant's motion. In addition, the government and defendant shall both disclose their expert evidence thirty days prior to trial and disclose any rebuttal expert evidence fifteen days prior to trial. Finally, to the extent defendant seeks discovery beyond what Rule16(a)(1)(G) provides, the request is DENIED.


         Defendant seeks an order requiring that the government provide it with a privilege log of all material it is withholding pursuant to paragraph 2 of the Stipulated Discovery Order, which reads, in relevant part, as follows:

The United States may redact or withhold information from the open discovery file for security concerns or to protect an ongoing investigation. This does not preclude the defendant from requesting in camera review of such material by the Court, upon proper showing, in order to determine whether or not it should be disclosed in accordance with Fed. R. Crim. P 16. Where the United States withholds information from its standard discovery file, notice of the withholding, along with a general description of the type of material withheld, will be included in the discovery file.

(Doc. No. 25). Defendant further requests that the court order that the privilege log be updated each time the government withholds information that is the subject of paragraph 2 of the Protective Order.

         The government responds by stating that it has not withheld any information pursuant to paragraph 2. The government states that the only things it has withheld so far are normal redactions for personal identifying information and email addresses and that it has provided the defendant the information when it has been requested. Defendant, in his reply, does not dispute the government's representation that it has not so far withheld any formation pursuant to paragraph 2, but contends that the government should be ordered to prepare a privilege log going forward.

         While it would be within the power of the court to order that the government produce a privilege log and that may be appropriate in some cases, Fed. R. Crim. P. 16 does not contain a provision comparable to Fed.R.Civ.P. 26(b)(5)(A)(ii), which requires in civil cases that a party withholding information based on claim of privilege “describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Further, there is no indication that the lack of any comparable provision in Fed. R. Crim. P 16 was an oversight. Most probably, it is the consequence of the differing and more limited provisions for discovery in criminal cases.

         In short, this is a matter left to the substantial discretion of the court. Cf., United States v. Wirth, No. 11-256, 2012 WL 1580991, at *2 (D. Minn. May 4, 2012) (noting the absence of any requirement for a privilege log and concluding that one was not warranted); United States v. Jack, 263 F.R.D. 640, 646 (E.D. Cal. 2010) (same). In this case, the court concludes that a privilege log is not warranted. For one thing, defendant has not provided sufficient cause for this court to be concerned that the government will not comply with its discovery obligations. Second, paragraph 2 of the Stipulated Discovery Order provides its own mechanism for alerting the defendant of any material withheld pursuant to that paragraph.

         Defendant's Motion for Privilege Log (Doc. No. 58) is DENIED.


         A. Introduction

         Defendant seeks an order requiring that law enforcement “rough notes” or “field notes” be (1) preserved and (2) produced to the defendant for examination at least 45 days prior to trial or, if not produced to the defendant, turned over to the court for an in camera inspection. In support of the motion, the defendant relies upon: (1) Fed. R. Crim. P. 16; (2) the Jencks Act (18 U.S.C. ยง 3500); and (3) the government's obligation under ...

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