The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Before the court is plaintiff's motion for discovery, which seeks an order compelling defendant to provide plaintiff with discovery consistent with Federal Rule of Criminal Procedure 16(b). (Dkt. No. 39.) For the reasons stated below, the court grants plaintiff's motion for discovery.
Defendant made an initial appearance and was arraigned on July 31, 2008. (Dkt. No. 4.) The trial in this case is set for March 9, 2010. (Dkt. No. 41.)
In a letter dated August 6, 2008, Assistant Federal Defender Lauren Cusick requested that plaintiff provide open-file discovery or, alternatively, compliance with specific discovery requests contained in the letter. (Mot. For Discovery, Ex. 1.) On August 26, 2008, December 18, 2008, and August 13, 2009, plaintiff transmitted letters to Ms. Cusick enclosing responsive discovery or making available for inspection material responsive to defendant's discovery requests. (Mot. For Discovery, Exs. 2-4.)
In each of its response letters, plaintiff also requested reciprocal discovery from defendant pursuant to Federal Rule of Criminal Procedure 16(b) and Local Rule 440. (Id.) Each of these letters further stated that plaintiff would seek to bar the introduction and use at trial any evidence not produced by defendant in response to plaintiff's reciprocal discovery request. (Id.) Nothing in the record or the court's docket suggests that defendant ever complied with or responded to plaintiff's discovery requests.
Plaintiff filed its motion for discovery on December 15, 2009. Plaintiff's motion seeks an order compelling defendant to provide responsive discovery by February 26, 2010, and requiring defendant to provide additional discovery under continuing disclosure obligations. (Mot. for Discovery at 4.) Although plaintiff previously communicated to defendant its intent to seek to bar the introduction of evidence not produced in response to its discovery request, plaintiff's motion for discovery contains no request for sanctions.
Defendant failed to file an opposition to plaintiff's motion within seven days as required by Local Rule 430.1(d), has not filed an opposition as of the date of this order, and has not requested an extension of time. Accordingly, defendant is not entitled to be heard in opposition to plaintiff's motion at oral argument. Id. ("No party will be entitled to be heard in opposition to a motion at oral argument if that party has not timely filed an opposition to the motion.").
Federal Rule of Criminal Procedure 16(b) prescribes a criminal defendant's reciprocal discovery obligations at issue here and states, in relevant part:
(b) Defendant's Disclosure.
(1) Information Subject to Disclosure.
(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible ...