IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 18, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
FREDERICK SCOTT SALYER,
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Introduction and Summary
The trial judge, Honorable Lawrence K. Karlton, referred the matter of discovery, and specifically the production of voluminous amounts of electronic and hard copy discovery to the undersigned, to advise on the impact of such discovery to motion and trial dates set, or to be modified, in the above criminal case. Unlike the usual discovery dispute -- not enough produced -- the dispute between the parties involves too much produced, in too many formats, and whether the defense has been given a fair opportunity within the parameters of an adversary system of criminal justice to make use of that discovery.
The undersigned first analyzes, as best he can, the history which led up to the present situation, the real problems faced by the defense, the solutions which have been launched at this time to alleviate any problems, the matter of a web-based common data base equally accessible to both parties, and finally the undersigned's evaluation of the defense readiness for motions and trial in light of or despite discovery/resource problems. Case Background*fn1
The United States believes that defendant Salyer, the one-time head of a large food processing company(s) involving, to a large extent, tomato products, and assisted by persons both within and outside his company, committed several commercial crimes over an extended period of time. Specifically, Salyer is charged with racketeering activity, falsification of records and antitrust violations. In general, Salyer's company, SK Foods, acquired tomatoes and other vegetables from growing enterprises, and through brokers or otherwise, sold processed products to large companies engaged in using the wholesale food products in retail/consumer products, e.g., catsup, salsa, spaghetti sauce, and the like. The sixty-five page superseding indictment alleges that Salyer: preserv[ed, protect[ed] and enhanc[ed] SK Foods' profits and customer base through acts of mail fraud, wire fraud and bribery; caus[ed] purchasing agents and other employed by SK Foods' customers to breach a duty of loyalty and fidelity which they owed to their respective employers; increas[ed] SK Foods' profits by fraudulently inducing certain of SK Foods' customers to pay for adulterated and misbranded processed tomato products by causing the falsification of mold counts and other grading factors and data contained on quality control documents that accompanied customer-bound shipments of processed tomato products that were produced, purchased, and sold by SK Foods, and by actually shipping the adulterated and misbranded tomato products to customers along with the altered documentation;
Superseding Indictment at 10.
SK Foods and its related companies were not a small operation. It sold
multi-million dollars worth of product to companies located throughout
the nation. It may well be (or was) international in scope, but the
focus of this prosecution is United States based. As is the case with
all large companies with many customers involving large quantities of
product, immense amount of records, paper and electronic, are
involved. The many years long scope of
the investigation (1998-2008) exacerbates the volume of records
potentially relevant. The multitudinous number of companies with which
SK Foods did business again increases the volume of pertinent records
in that SK Foods included documentation with or about its shipments to
the companies, and the companies themselves kept their own records. SK
Foods use of "independent" brokers again multiplies the near mountain
of records. Added to this vast array of documentation are the records
created by the investigative agencies regarding its investigation
including wire recordings/transcripts, subpoenaed documents, and
documents acquired by search warrant. There exists much duplication in
the records acquired, but they must be examined to some extent to see
if discrepancies are extant. It is probably no exaggeration to state
that 1-2 terabytes of information are involved. A very visual
definition of the amounts of data involved appears in
www.whatsabyte.com and is set forth in the footnote below.*fn2
when one consider the terabytes of information in this case are
comprised of thousands and thousands of individual records, the mass
of documentation acquired in the investigation and turned over in
discovery is extreme.
As set forth in the government brief to the undersigned, the categories of documents produced to Salyer in discovery from different sources, and which nearly encompass the waterfront of produced materials, are a useful way to view the conceptual problems involved in production of massive amounts of electronic information:
1. The first category consists of documents such as the government[']s case files, interview reports, photographs and items received from the informant. These were OCR'd and scanned into .pdf form and produced almost all with accompanying text searchable files.[*fn3 ]
2. The second category consists of third party records [understood by the undersigned to be non-SK Foods documents, e.g., Kraft Foods, Frito-Lay, Antitrust Division, and so forth] received by the government in electronic form. These were copied for the defense in the same fashion received. Almost all are text searchable [government included a footnote saying that all would be text searchable soon] and came with load files for Summation and Concordance.[*fn4 ]
3. The third category consists of third-party records received by the government in paper form. These were scanned into electronic form and produced in text-searchable [format] with Summation and Concordance load files.
4. The fourth category consists of all paper records seized pursuant to search warrants. These have been meticulously organized in boxes by item number in the search warrant and are easily accessible to the defendant. [undersigned's explanation][On Tuesday, April 5, the undersigned visited the FBI location where these documents were kept. Many boxes of documents existed in pods and in two rooms inside an office annex. However, the bulk of the documents were well organized and labeled shipping documents. These documents reflected a particular product shipped at a particular time along with product specification information. While there were many, many of these boxes, each containing voluminous records, if one had a particular shipment in mind, it would be relatively easy to acquire the documents for that shipment as the boxes were well labeled and organized. The remaining hard copy documents (some of which had been scanned and delivered to the defense already) were a pot pourri of records seized as a result of various search warrants and subpoenas. While the boxes were labeled, it would be difficult to understand what had been placed in each box without looking through it. Handwritten search returns were available for review, but as is generally the case, the descriptions on the return are fairly general. Arrangements were made to supply the defense with a master index (assumed to be fairly accurate) of all the boxes contained at the FBI facility. The FBI facility is a very secure setting. Any visitor is under escort at all times for chain of custody purposes and other reasons. This makes it difficult for the defense to engage in a review of documents in that conversations amongst the defense team are kept to a minimum. The fact that the boxes are in different locations adds to the difficulty; however, if one knows what he is looking for, the difficulty is manageable. The pods setting also makes it difficult to review documents when the weather is inclement. There are no desks or chairs in pods setting effectively limiting the time review can be made due to discomfort. Any copying to be done must be done by a copy service brought to the FBI facility for that purpose. ]
5. The fifth category is a subset of category 4 and consists of selected shipping records tracing [according to the government] the shipping of moldy and/or mislabeled paste with altered documentation. These were culled by hand over a period of months in 2008. They have been scanned and the hard copies organized into about thirty binders which have been presented to the Defense. [undesigned's note][These binders constitute the heart of the government's fraud case. However, defense counsel refused to concede that this organization of the government's case aided the defense discovery efforts; this dispute is referenced further below.]
6. The sixth category consists of the SK Foods inventory and quality control system, known as the "AAS" system. This was produced to the defense as a forensic image along with an explanation of how to recreate it as it ran at SK Foods at the time of the search. [undersigned's note][The forensic image referenced was actually the entire inventory and quality control system database as it appeared on the main SK corporate computer/server as of the date of the search. This database approaches a 500 gigabyte size (very large). The forensic copy (initially requested by Salyer) was only of limited value. Although it could be made searchable by means of special software, it is more difficult to find what one desires to find than when one was looking for the same information on the actual SK computer system housing the information and using SK systems/software. The United States, through sophisticated software manipulation, and the assistance of present or former SK employees, was able to actually "re-create" the SK computer database, and run it as if that database were being queried by an SK employee at the time of the search. The re-creation has the look of what the SK employee would see at the time as well. Salyer was told how to do this re-creation, but his experts did not have access to the SK employees who aided the government computer personnel when those personnel were re-creating the database, and Salyer's experts may have been unfamiliar with the proprietary software that SK was using at the time. At hearing on March 30, the government offered to "give" Salyer (lend for the duration of the proceedings) an up-and- running re-created database. At the April 5 "hard copy" site review, two of these re-created systems were given to the defense so that Salyer could utilize this re-creation himself in Monterey County. A separate order will reflect this "gift." This re-creation is very useful in attempting to correlate input/modified data on the system with initial handwritten data recordations. A large part of the government's case involves its belief that the computer data was unlawfully modified, and the government plans to prove this by reference to the raw, handwritten data.]
7. The seventh category consists of all of the other computers seized from SK Foods and the other subjects in the case. These were produced as forensic images because that is what the defendant specifically requested. The defendant does not contend that these are not searchable [however, special software must be employed to make forensic images searchable], only that the 25 or so hard drives are not searchable at once. This is not a capability the government has either.
After consideration of all the submissions of the parties, the in-court demonstration, and the visit to the FBI hard copy document storage, the court finds that the following problems/issues have complicated expeditious pre-trial review of the massive amounts of information. But first, the undersigned emphasizes that no party to this criminal action has acted in bad faith. The government has attempted to mitigate the electronic discovery problems encountered by Salyer; indeed, the government has gone the extra mile in supplying Salyer part of its work product in terms of exhibits to be used at trial and re-creation of SK computer systems. Salyer has been initially, legitimately overwhelmed by the amount of information to review and organize, although the extent to which this initial state remains is not completely clear.
1. Too Much Information From Multiple Sources As is the case with many criminal cases in which much of the evidence will be found on electronic storage devices, the present method of operation is seize first, analyze later. The undersigned is not asserting that such is unreasonable per se, as the government has little practical choice but to perform the computer forensics to discover information pertinent to a search warrant or subpoena in a separate laboratory situation. The end result, however, is that much information seized will not be utilized in the case. The defendant, generally and in this case, desires to see everything that the government has collected, evidently not trusting the government's relevance analysis. The problem is, however, that as the information to be reviewed explodes exponentially, not much thought is given by the government during the acquiring phase to the effect on the defendant of having so much information to review, and the effect that such massive disclosure will have on the pretrial process.
And, the "too much" problem here, though not created by the government, is exacerbated because the information comes from various sources. As presently constituted, defendant has to maintain a separate data base, more or less, for each batch of discovery which arrives from a different source. While some issues in the case should not require the querying of every data base, as a particular issue may be associated with only one source, general issues, e.g, the giving of bribes/gifts, others may require looking into numerous sources. Separate hard drives with differing formatting requirements have to be loaded, or one CD replaced by another, has to be viewed. The problem here is analogous to having massive paper discovery organized by source all placed into separate rooms of scattered locale, all with somewhat differing organization. Trying to pin down all the differing responses to an e-mail discussing adulterated food products, e.g., the e-mail "thread," in-house memorandums, corresponding testing results, captured phone discussions, what is truly duplicative, and the like, would require getting up after one room's search, and traveling to the next room, to the next room, and so forth. This is bound to take much extra time. It also takes electronic discovery expertise.
Thought to mitigate such potential delay accruing from the massiveness and separate source has come piecemeal as the defendant complains rather than from foresight. The fact that the government's lawyers/investigators often have the luxury of time (years) in which to organize and cull the pertinent information produces little empathy for the plight of the defense lawyer(s) who have to review the information within the time parameters of a criminal pretrial setting.
When the amount of information in a criminal case reaches the hundreds of gigabytes/terabyte stage, the government should consider whether everyone is better served if this information is placed in a common data base. See e.g., United States v. Perraud, 2010 WL 228013 *5 (S.D. Fla. 2010) ( a case involving the seizure of multiple computer hard drives and approximately 5,000,000 documents):
Separate and apart from the discovery described above, on approximately August 1, 2009, the United States established iConnect, an online database to house all of the evidence in the Texas Action and the pending matter. Id. at 5. As the Government explains it, iConnect is an "[I]nternet-driven database that allows for the upload and search of volumes of documents and materials," which enables a user to view and search evidence from any computer with Internet access. Id. According to the Government, iConnect "has all the [G]overnment's documents relating to [the Texas Action], ... [but the Government] performed iConnect searches of ["]Raffanello,["]["]Perraud["] and related documents/employees and identified approximately 5,000 documents or [fewer]." D.E. 91-3. To facilitate discovery in both the Texas Action and the instant case, the Government asserts, it provided each defense attorney in both cases with access to iConnect so they may view and search the evidence that the United States has obtained in its investigation. D.E. 95 at 5. Among other information, the iConnect database includes the materials that the Government had previously provided to Defendant Perraud. Id. The United States sent defense counsel an e-mail instructing them how to access iConnect and provided each attorney with a manual to aid in searching the iConnect database. Id. at 6.
Whether this can, or should, be accomplished at this point is discussed below.
2. Resources of Defense Counsel
The problem is not the "readability" of the electronic discovery produced, although there have been some format glitches over the months, but in its "useability." as referred to in paragraph 1. It is one thing to be able to understand the facial substance of an electronic document (those problems have been largely solved, if not solved all together); it is quite another to be able to organize and present what one has been given.
Defense counsel in this case do not have the resources to quickly and
efficiently organize and cull the electronic and hard copy paper
discovery. In such a case, there is the need to coordinate immediately
with computer forensic experts as well as the need to hire paralegal
resources to help organize and review. While the undersigned is not
privy to Salyer's remaining monetary assets, it is probable that
Salyer cannot afford to retain such experts long term with a view to
placing all of the produced information (electronically produced as
well as hard copy documents) into a common data base, and then cull
the wheat from the extensive chaff so as to be able to mount defense
exhibits on a trial preparation/presentation software.*fn5
One of the government attendees at the in-court demonstration
opined that it would cost between $1-2 million dollars to transfer all
electronic discovery as well as to scan the hard copy discovery, into
a common data base at this time.
Care must be taken to separate the discovery organization issues from those of presentation at trial. While defense counsel bemoan the fact that it would take hundreds of thousands of dollars to convert the [relevant] data produced in discovery onto a Summation platform, this is not a problem that the government can fix for the defense. "Searchable" discovery is one thing; "preparing it" for loading onto a defense counsel's chosen computer presentation device is quite another.*fn6
It is also clear that the defense team does not have access to the number of support staff available to the government. Even with a searchable data base, either from multiple sources or a common data base, culling the pertinent information with a degree of accuracy will take time. Of course, it will take more time, if multiple sources, e.g., materials from the antitrust division, the SK Foods computers, and so forth have to be individually queried. However, the extent to which the defense really needs to review all of the seized information, or even have electronic access to it, remains unclear. This issue is discussed further below.
3. Technological Learning Curve
Quite a bit of time spent so far by the defense team, although that word may encompass two lawyers only, has been on a technology learning curve. There has been quite a bit of back and forth between the defense team and the government in that discovery has been produced in the absence of knowing (by the government) what the defense technological problems may be. It may well be the case that defense counsel, very skilled in all traditional respects, find themselves behind the technological knowledge curve when it comes to preparing an electronically based mega-documents case.
4. Salyer's Need To Review All Discovery
The defense has made clear that it desires Salyer's personal presence both at the defense law firm when necessary and when reviewing discovery on-site takes place. This "requirement" does cause delay in that Salyer's release conditions mandate permission for him to travel to Sacramento, or wherever, and then he has to be back home in Monterey County by a set time each day. This discovery schedule has to be coordinated with his counsels' schedule. The defense has a partial point here in that Salyer's participation in defense preparation is more extensive than usual.
This is not the case where an individual criminal defendant in a white collar corporate case has corporation behind him, assisting him however it can. Compare United States v. W.R. Grace, 401 F. Supp. 2d 1069, 1080 (D. Mont. 2005). Rather, the government has the assistance of former SK Foods employees and outside individuals associated with this case. There is not a defense team as is often the case when similarly situated defendants are opposing the attempts of the government to convict them as a group. Rather, as perceived by the undersigned, Salyer himself is the sum total of the defense "corporate knowledge" of the years long activities at issue in this case. The defense does rely on Salyer to instruct and interpret the evidence. Thus, it is not unexpected that Salyer would play a large role in defense preparation than might ordinarily be the case. It should also not be unexpected that this participation would take extra time.
Nonetheless, the problem here should be receding in importance, especially in that Salyer has been out of custody and aiding the defense for sometime. The lawyers in this case are not clueless as to what the issues are, as well as the possible defenses. As all good lawyers can do, and especially with significant time in this case under their belts, Salyer's present lawyers should be able to determine the significance, or lack thereof, of most documents. Defense resources would be better served if they were directed in the main at lawyers, paralegals and experts at this time as opposed to completely facilitating Salyer's knowledge of all discovery.
5. Inability to Agree on the Precise Issues in Dispute and the Documents Needed This problem would appear to be unlikely as the indictment is fairly specific with respect to what is being charged. The indictment alleges several criminal law violation theories, e.g., racketeering, wire/mail fraud, price fixing, but the factual overlays for each theory all rely, more or less, on the same facts. The government has charged Salyer with fostering bribery in order to get a leg up on his competition, with mislabeling or falsifying quality control information sent to customers, thereby again, getting a leg up on the competition (by not having to send higher cost, correctly labeled/documented product), with using bribes to acquire a competitor's propriety information. The indictment breaks out specific examples of activities with specific companies. As referenced above, the government has supplied the defense team with binders setting forth a great deal of their falsification/mislabeling exhibits.
Rather than respond to the indictment allegations head-on, i.e., the alleged acts did not happen, the defense theory appears to be one created out of alleged business custom and practice. The undersigned uses the word "appears," as the defense theory has not been spelled out with clarity. The theory, directed to the falsification/mislabeling allegations, asserts that it was common practice for business entities such as those referenced in the indictment to informally relax their contractual standards as emergent difficulties popped up with respect to the food manufacturers' needs. That is, for example, business X which uses tomato products in its food products might have a shortage of that raw product if the contract specifications were rigidly followed. A phone call or e-mail would waive the standards for specific shipments.*fn7 The defense contends that broad document searches from multiple sources have to be undertaken in order to present this defense.
Solutions and Timelines
Motions to Suppress
The undersigned has reviewed the presently filed motions to suppress. An index of such motions appears at Docket #160. Two of the motions have been resolved, Docket #144, resolved Docket #273 (Motion re Warrantless Searches), and Docket 141, resolved Docket #276 (Motion to Suppress Jail Conversations). With respect to the first referenced motion, Salyer filed a memorandum asserting that more, yet undiscovered, documents were needed (Docket #250); this position was rejected by Judge Karlton.
Four motions to suppress remain pending: Docket#147 (Motion to Suppress Statements), Docket # 151 (Motion to Suppress Search Warrants (based on information from wiretaps)), Docket # 154 (Motion to Suppress Illegal Wiretaps), and Docket #157 (Motion to Suppress Google e-mail Search). Some of these motions were accompanied by a significant documentary presentation. While any lawyer might desire to find one more document to submit as an exhibit prior to resolution, none of these motions should be significantly impacted by any remaining discovery problems. The motions, to the extent that they rely on documentary exhibits, are sufficiently referenced to discrete data bases and production of documents such that awaiting resolution of all discovery documents problems is not warranted. The defense has had sufficient ability, access to, and time to review/ present pertinent documents for its motions. The undersigned recommends that the trial judge schedule hearings as expeditiously as he desires.
Preparation for trial is a more difficult matter. The undersigned makes the following recommendations for the reasons given for each recommendation.
1. The undersigned does not recommend that the United States be compelled to contribute to the cost of a common data base.
First, there exists no tangible authority to compel such a contribution. The undersigned understands that some necessary flexibility exists in the Federal Rules of Criminal Procedure to order actions not expressly sanctioned in the Rules. See Salyer Order of July 9, 2010, at 6, 8-12; Salyer Reconsideration Order of August 2, 2010, at 3-4; W.R. Grace, supra. However, ordering the government to contribute some hundreds of thousands of dollars for the creation of a common data base which it would probably not utilize at this time (its work having been mostly done) is beyond flexibility and into a non-adversarial system of criminal justice. While the creation of such a data base might well have been appropriate if voluntarily created at an earlier stage when both sides could have utilized it, such is not appropriate ordered at this time. Perhaps, if the government has purposefully disorganized the discovery, the undersigned might think further of ordering a common data base as a sanction, but purposeful (or mindless) disorganization of the voluminous documentation in this case did not occur. Moreover, the government has gone to some expense in making certain hard copy discovery electronically accessible. It has re-created the SK server data base, in part, for use by the defense and Salyer personally. The government has assisted in resolving some of defendant's technical problems.
Secondly, cost is a reason in the undersigned's opinion for not creating a common data base at this time. The transformation of documents presently in electronic form, but in different formats, into a commonly formatted data base could be done fairly efficiently. But even then the cost would run in the low hundreds of thousands.*fn8 If all the remaining hard copy documents were scanned, the total cost of creating a useable data base would range from approximately $350,000 to nearly $800,000. As set forth below, the undersigned would not recommend the scanning of the multitudinous customer shipping documents in any event. Approximately 40% of the cost would be saved thereby. Salyer professes no present ability to pay for the common data base, but if the Andorra trust funds became available to him, he might be able to contribute up to $250,000.
Next, the undersigned has no clear understanding of what the defense hopes to accomplish by creation of a common (all-in-one) data base. Yes, it would be easier to not to have to load different data bases on different computers, and it would be more efficient to perform document searches with one search instead of several. Salyer, personally, would have access to this common data base as well for whatever assistance he could provide.
However, most of the discovery is accessible electronically, and
Salyer can be hooked up to computers in defense counsel's office with
little cost involved. The re-created and quite searchable SK Foods
data base has to be of much assistance to the defense team in
event, and is a data base familiar to Salyer personally, and now one
in his possession. Moreover, if one were researching an asserted deal
in which quality standards were waived by specific customers, that
search can be directed at discrete data bases without the necessity of
searching all-at-once the universe of companies with which SK Foods
did business. Indeed, one would think that the defense would start
with the binders given to them by the government to see if any of the
asserted waivers apply to the exhibits in the government's case. The
defense does not have to submit singular evidence relating to every
business transaction over the course of years which involved waived
quality standards; the defense can submit summaries, or combine
illustrative exhibits with testimony to prove the point, if it in fact
is provable. The great bulk of hard copy customer order documents at
the FBI annex are well organized, and with sufficient pre-visit
research, the purchase orders necessary to retrieve can be so
retrieved without a great deal of difficulty, and with a minimum of
visits. There is no justifiable point to scanning these thousands and
thousands of customer shipping documents. The remainder of the hard
copy documents to be reviewed entail various discrete
searches/subpoenas which turned up, in all probability, redundant or
unimportant material. The defense has had time to peruse these
materials over the last seven or so months. In any event, and
importantly, the government was ordered to perform a search of its
materials to determine the existence of Brady/Gigliomaterial, which in
the defense words, revealed a "treasure trove" of useable, but
heretofore, undiscovered by the defense team documents.*fn9
To the extent that the defense has not already hand searched
the miscellaneous documents, one could question the value at this
point of scanning these documents into a common data base for the
purpose of yet another search.
A main pillar of the government's charges, bribes to acquire business, are certainly charges to which focused searches can now be made, or have been made, and appear unrelated to the informally explained defense theory. The same goes for the allegations of pricefixing. The altered documents charge (minutes of the SK Board meetings) do not require omnibus searches.
For all of the above reasons, the undersigned does not recommend the ordering of a common data base with government (prosecution) participation.
2. CJA Request
Title 18 USC 3006A does not by its words require that a defendant be indigent for all purposes before an expense request paid for by CJA monies may be approved. The "expense" section of 3006A is distinct from that of appointing counsel for indigent defendants.
(e) Services other than counsel.--(1) Upon request.--Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.
These services referenced in subsection (e) do not require that "counsel" be CJA appointed counsel; neither will the undersigned.*fn10
The key balancing on a CJA request is concerned with the cost of the requested services in light of its reasonably expected benefit to the defendant. In other words, would a retained counsel representing an adequately financed defendant reasonably expend the client's monies for these services. United States v. Chase, 499 F.3d 1061, 1066-67 (9th Cir. 2007) (defense entitled to expert for use in drug case where drug quantity was disputed). Section 3006A has constitutional underpinnings, see Ake v. Oklahoma, 470 U.S. 68, 76-77, 105 S.Ct. 1087 (1985). "[F]undamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversary system." Id. Thus, every defendant should have "access to the raw materials integral to the building of an effective defense." Id. See United States v. Lefkowitz, 125 F.3d 608, 620 (8th Cir. 1997) (approval of $169,000, but not more, for expert advice in a large documents fraud sufficient for defense); United States v. Rivera, 292 F. Supp.2d 823 (E.D. Va. 2003) (jury consultant not a necessary expense).
As set forth in the previous section, the undersigned does not believe that the court has the authority to order the Executive Branch to share the cost with the defense of creating a common data base, and also, Salyer has not demonstrated a specific necessity for such. The undersigned believes that Salyer should, however, be permitted to attempt to acquire such funds, in whole or in part, through an ex parte showing of indigency (in light of the service requested) and its specific need. "Need" will be judged in terms of its necessity to the bringing of an effective defense. Not any potential or possible benefit will do -- defendant must show that the cost (hundreds of thousands of dollars) justifies the requested services in terms of showing that an effective defense will be substantially impaired in the absence of such expenditures. Salyer should be able demonstrate real-life examples of his defense from his previous review of documents which could reasonably be viewed as a microcosm for an effective macrocosm defense based on a consolidation of the universe of evidence, and which could only be reasonably obtained if a common data base was created. On the other hand, a presentation only showing through the creation of a common data base that it might be easier to ferret out a yet specifically undefined defense which might be available by use of a common data base will not suffice.
3. Trial Dates
A CJA request to grant funds for the purpose of establishing a common data base should be made, if Salyer so desires, no later than 30 days from the date of a district court order reviewing these findings. Such a data base primarily obtained from information already electronically stored (again, not permitting the hard copy shipping order documents to be scanned, as such are usable without transformation to electronic form) could be created within approximately 30 days from the date of approval. If such services were approved for Salyer, the undersigned believes the defense could not be prepared for a late 2011, early 2012 trial. Conclusion
The undersigned summarizes his recommendations as follows:
1. The court need not delay resolution of the various suppression motions due to the volume of discovery in this case;
2. The government (prosecution) not be compelled to create, or share in the cost of creating, a common data base;
3. If Salyer desires to do so, he be permitted to file ex parte, within thirty days of any district judge order adopting this recommendation, a CJA request for services in which he details his financial need for such, and the necessity for such with respect to preparation of an effective defense;
4. That trial be scheduled for late 2011 or early 2012.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Notwithstanding any lengthier period authorized by law, within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).