By IT-Lex Intern Christopher Britt (LinkedIn)
Let it never be said that the United States’ Attorney’s office is not a giver. Recently, in U.S. v. Cashion, a case involving fraud, conspiracy and money laundering charges, defendants’ counsel asked for production and got way more than he bargained for. Sean Devereux was bombarded with approximately 270,000 documents from the prosecution.
In his Motion to Compel the government to comply with electronically stored information discovery guidelines, which he was kind enough to send us for this story, Mr. Devereux noted:
Counsel for a co-defendant has conducted a preliminary review of the 64,000 new pages which appear to contain many witness statements, e-mails and other highly relevant material. Based upon this review, counsel feels that most of the 64,000 pages will have to be studied and reviewed for relevance.
It was not the sheer amount of the information that Devereux received that spawned the motion to compel, however. The government provided all of this information with no readily available way to search through it. Point #15 on the motion pointed out that:
No outline, table of contents or indices remain from “native files” obtained from third parties by government agents nor were such tables or indices created by the government.
At issue is rule 34(b)(2)(E) of the Federal Rules of Civil Procedure which states:
Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the final request
The concern, of course, is that with all of this information being relevant, Mr. Devereux would be hard pressed to put on an adequate defense for his clients. Subsequent to receiving that 64,000 document set, “defense counsel was informed by the Government that an additional 95,000 pages of discovery would be forthcoming”. In an order last month, the court recognized the uphill battle that defense counsel would face:
While it is certainly not uncommon for some additional discovery to be produced by the Government shortly before trial, the volume and nature of the discovery that has been produced in the past eight weeks has been staggering. As defense counsel correctly notes, reviewing the Government’s discovery is only the first step in preparing a defense. Once discovery has been reviewed, counsel must then investigate that evidence, gather additional documents, interview witnesses, prepare exhibits, consult with experts, and if necessary, draft and file various pretrial pleadings, such as motions, jury instructions, and the like.
Based on these, “the most extraordinary of circumstances”, the court allowed another continuance in this case.
The Court finds that the circumstances described above qualify as most extraordinary and therefore justify a continuance of this matter. Due to these circumstances, as well as the number of defendants involved and the nature of the prosecution, this case has become so unusual and so complex that it is unreasonable to expect counsel to adequately prepare for trial within the usual time limits set forth in the Speedy Trial Act.
Further, if this case were not continued, the Court finds that counsel for the Defendants would be denied “the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.” Additionally, without the requested continuance, counsel would not have the ability to engage in meaningful plea negotiations, which would result in a miscarriage of justice.
(Internal citations omitted)
The trial is – currently – set to begin on October 7th.
