The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
The United States (government) has moved the undersigned for reconsideration of that part of his discovery order dated July 9, 2010 (Docket 132) in which the government was tasked with Brady/Giglio identification of already disclosed, voluminous documents and other materials, identification/disclosure of Brady exculpatory information which had not yet been disclosed, and identification with an eye towards later disclosure of Giglio information which had not yet been disclosed. See order at 13. The undersigned finds reconsideration warranted based on the developed arguments of the United States. After close review of the government's request, especially the burdens arguments, and defendant Salyer's opposition, the court affirms its previous order with modifications to the logistics on implementation. The undersigned reviews each of the government's arguments in turn.
The government first argues that an order for it to identify Brady/Giglio information compels a revelation of its core work product. The government mistakes statement of a position in a criminal litigation for compelled revelation of work product. The government's position is misguided, albeit commonly argued. For example, the indictment itself is the formalized statement of the government's legal analysis that Facts 1, 2 and 3 comprise the crime of X. Yet the government could not be logically heard to argue that the process of requiring an indictment, and its disclosure in open court, somehow constitutes an unwarranted disclosure of its core work product. Similarly, Fed. R. Ev. 404(b) requires the government, upon request, to provide pretrial the general nature of the "bad acts" evidence it intends to use concerning motive, intent, etc. Someone in the U.S. Attorney's office makes the legal analysis that a certain act would qualify as a "bad act" and is relevant to motive, for example, and then identifies/discloses the nature of the evidence. The identification and analysis of the evidence is surely an attorney's thought process, but no one would consider Rule 404(b) to tread on work product. Further examples abound, even on the defense side -- a defendant is required to assess the evidence, come to a determination, and then give notice of an insanity defense if appropriate, Fed. R. Crim. P. 12.2. Surely, such a determination is at the pinnacle of attorney thought process -- yet it is required to be identified and disclosed.*fn1
Rather, work product is classically defined as those in-house, attorney or investigator created reports, memoranda and so forth which discuss a legal issue, a planned course of action in the investigation/litigation, and the like. See Fed. R. Crim. P. 16 (a)(2). Thus, the prosecutor's memorandum to the U.S. Attorney as to why a prosecution should be brought is protected work product -- the ultimate memorialization of the approval of prosecution, i.e., the indictment, is not, regardless of whether the legal position in the indictment precisely tracks that of the initial memorandum. The cases cited by the government, e.g., Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006) (involving a prosecution created status report), discuss situations which fall into the former, protected category, and are inapposite to the identification/disclosure requirements of the order.
If the government's position were to prevail, nothing containing a legal determination or analysis could ever be filed. This would lead to an absurd result. Indeed, a court could not order the production of heretofore undisclosed Brady/Giglio material because the AUSA would first have to make a "legal determination" that some information in his or her file constituted Brady/Giglio, and disclosure would then constitute revelation of core work product. There would be a duty to disclose Brady/Giglio, but work product would prevent its disclosure in any meaningful fashion. Catch 22's are disfavored in litigation. Accordingly, when a court compels the government to identify and/or disclose Brady/Giglio material from documents acquired from third parties or entities, that identification, much like every other compelled identification or disclosure in the Rules, is not the revelation of protected work product.*fn2
Next the government argues that the Ninth Circuit has determined that a Brady violation has not been found for exculpatory or impeaching material that was disclosed, but not identified as favorable to the defense, citing Rhoades v. Henry, 596 F.3d 1170, 1181 (9th Cir. 2010). This is again a correct legal argument in the circumstances of that case, but inapposite to what the undersigned is doing. The case law is established, as a general rule, that if Brady/Giglio were disclosed to the defense, the fact that the government did not identify it as such will not cause the conviction to be reversed. However, that case law does not preclude the undersigned as a matter of case management (and fairness) in ordering identification to be done. For example, as a general rule, a conviction will not be reversed for the government failing to identify its witnesses pretrial. However, that fact does not preclude a court from ordering such identification and disclosure prior to trial as a matter of case management where appropriate. United States v. W R Grace, 526 F.3d 499, 509-510 (9th Cir. 2008) (en banc). The undersigned is doing nothing that the Grace case does not approve in general principle as a matter of case management in this particular case. See also Advisory Committee Notes, Rule 16, 1974 amendment: "The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases." See also Fed. Crim. P. 2. In sum there is no authority which prohibits the court's exercise of discretion here. Moreover, the government argument that it has not violated Brady/Giglio by its activities to date in simply disclosing everything to Salyer could, or could not, ultimately be found to be true after trial given the circumstances of this case, but it is not conclusive to the question before the court. As explained by Strickler v. Greene, 527 U.S. at 281, 119 S.Ct. at 1948, there is a distinction between the ultimate finding of a Brady violation and the initial "broad duty of disclosure" that is at issue here at this stage of the case.
Finally, the government arrives at its strongest argument: that nothing in the rules of our adversarial system should require the government to prepare the case for the defense, and specifically, that a trial court should not require the government to identify pretrial, even as a matter of case management, materials which are exculpatory or impeaching. See United States v. Skilling, 554 F.3d 529, 576-77 (5th Cir. 2009, aff'd in part, rvs'd in part, Skilling v. United States, __U.S.__, 2010 WL 2518587 (June 24, 2010)). "As a general rule, the government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence." Id. at 576. But see United States v. Hsia, 24 F. Supp. 2d 14, 29-30 (D.D.C. 1998) rvs'd in part on other grounds, 176 F.3d 517 (D.C. Cir. 1999) ("the government cannot meet its Brady obligations by providing [the defendant] with access to 600,000 documents and then claiming that she should have been able to find the exculpatory information in the haystack").
Despite the fact that the government's arguments have much color for the run of the main case, the undersigned finds for the purposes of this case that Salyer has the better argument.
However, before commencing the analysis of the government's colorable argument, a bit more of the factual circumstances of the information disclosed thus far must be made. Over the course of approximately five years before indictment, the government collected, i.e., subpoenaed, acquired through warrant, or other means, a massive amount of documentary information. Not only does the electronic information consist of multiple gigabytes, pages numbering into the millions*fn3 , the hard paper information fills more than two "pods" (storage containers), and there is further documentation stored in F.B.I. offices. When asked at hearing why the government would seek so much information, the response, pared to its essence, was "because we can."*fn4 In most cases, after the acquisition dust settles, a vast amount of acquired documentary material is often useless, if even reviewed at all. It remains unclear precisely how much of the acquired information in this case has actually been reviewed by the government.
The government represented on the record, that with the exception of internal documents created by government personnel, for the purposes of the investigation/litigation, every document acquired or seized by the government has been made available to the defense.
Thus, commencing the analysis here, the government's arguments center on the general assertions that it should not have to "crawl in to the mind of defense counsel" to prepare the defense in this case by identifying Brady/Giglio information, and in any event, that the burden of doing so in this case would impose an impossible requirement.
First, upon close inspection, the government's argument is not supported in the "big documents" case. As pointed out by Salyer in referencing the DOJ Brady/Giglio guidelines, and as well established by case law, the prosecution has the duty to affirmatively scour those records of the agencies considered the "government" for purposes of the criminal case in order to determine and acquire those materials which would be considered Brady exculpatory and Giglio impeaching. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555 (1995); United States v. Price, 566 F.3d 900, 908-909 (9th Cir. 2009). Indeed, the most recent Department of Justice guidelines, fashioned after some embarrassing non-disclosures in other cases, command an actual review of the materials acquired during investigation of a criminal case for the purpose of disclosing Brady/Giglio materials.*fn5 See Memorandum for Department Prosecutors, dated January 4, 2010, Section B, e.g., items, 1 ("The prosecutor can personally review the file or documents or may choose to request production of ...materials from the case agent"), 3 ("[g]enerally, all evidence and information gathered during the investigation should be reviewed, including anything obtained during searches or via subpoenas, etc."). Tellingly, nowhere in the memorandum does it even suggest that in lieu of affirmatively looking for Brady/Giglio the prosecutor may determine not to look at all and simply disclose the entire discovery file. The prosecutor's argument that his duty to affirmatively search for Brady/Giglio information is performed by not searching is oxymoronic in nature.
The government's "impossible" burden objections to the court's order (and DOJ Guidelines) are somewhat colorable, although as observed below, these arguments conflict with the inconsistent argument that with a modicum of diligence, the defense can ferret out all of the Brady/Giglio material itself. The objections also are hyperbole. And while the undersigned is sympathetic, he is not too sympathetic. During the course of any large case investigation, investigators and attorneys are going to have to review and organize the sometimes immense amount of evidence that is acquired. During the course of the years long investigation in this case, the government personnel seemed to be able to segregate that evidence which would be useful in the prosecution in terms of guilt, but apparently made no efforts to segregate that evidence which runs counter to the charges. Assuming for the moment that some Brady/Giglio evidence, as the court has defined it below, exists, the reviewing personnel apparently made no note of the evidence, or merely having noted it, "stuck it back" in the ever-increasing pile to be an inevitably hidden part of the mass disclosure. The obligations imposed by Brady et al. have been well established for years, and should be anticipated in every case during the investigation phase. If the government argues that it is now "impossible" to comply with the burden of reviewing evidence for identification purposes, the government more or less made its own bed in this matter by making it impossible.
At hearing, the government argued that it performs its Brady/Giglio duties as set forth above, by not looking for the required information as the cases seem to direct, but by just disclosing everything. And, there is some general, but ultimately inconsequential, support for that proposition. In Strickler v. Greene, 527 U.S. 263, 119 ...