United States District Court, N.D. California
ORDER REGARDING DISCOVERY MOTIONS HEARD ON JANUARY 23, 2015 Re: Dkt. Nos. 189, 216, 218, 221, 222, 224, 225, 226, 228, 230, 231, 233, 235, 236, 238
WILLIAM H. ORRICK, District Judge.
I held the second of the three sets of discovery hearings requested by the parties on January 23, 2015. See Dkt. No. 278 (criminal minutes). Six separate motions were brought by various defendants (Dkt. Nos. 216, 218, 221, 222, 224, 225), joined by others, (Dkt. Nos. 226, 228, 230, 231, 233, 235, 236, 238), and the San Francisco Police Department brought a motion to quash (Dkt. No. 189). The government continues to represent that it has produced all discovery other than that protected by the Jencks Act, and defendants continue to complain about the paucity of evidence provided thus far other than the pole camera videos that will take a long time to review. Many of the motions raised a generalized need to obtain additional evidence that the government agrees to produce, just not at such an "early" stage of the proceedings without a trial date set. The government's concerns regarding timing and witness safety are legitimate, as are the defendants' needs to know the evidence they will face at trial.
The way to break this logjam is to set a realistic trial date, and dates of disclosure pegged from that date. I direct the parties to meet and confer to propose a trial date and case management schedule leading up to the trial, and to file a Joint Statement on or before March 27, 2015 that either sets forth an agreed upon schedule or competing schedules. In the event of disagreement, it would be helpful if the parties would cite other scheduling orders in this District that tend to justify their positions. Because of the number of defendants and the Department of Justice's need to review whether to seek the death penalty for defendants Elmore and Heard, it is unlikely that I will try everyone together. Therefore, in the Joint Statement the parties should also present an agreed upon proposal, or conflicting proposals, regarding the appropriate time to group the defendants for trial and the composition of any group.
At past hearings, the defendants have identified various structural issues that made accessing the discovery provided by the government difficult. I have attempted to address those issues by entry of the Initial Protective Order, allowing purchase of MP3 players, facilitating the review of transfer requests to the San Francisco County Jail so that discovery material could be more readily reviewed by computer, and housing discovery materials at Glen Dyer now that the United States v. Ortiz, No. CR 12-00119 SI, materials are being moved, among other things. If any structural issues remain that are impeding the defendants' necessary review of the discovery, I expect that the defendants will promptly bring it to my attention.
Along with this Order, I am entering a Preservation Order for the reasons described on page 4, and a Heightened Protective Order, described on page 6. Although at the moment the latter order involves only one document for review by one defendant's counsel, it is my expectation that it will be more widely used as documents are unredacted closer to trial.
I. WILLIAMS'S MOTION FOR DISCOVERY (Dkt. No. 225)
Williams's motion sought six categories of discovery, and was joined by all defendants. The government agreed to provide much of what was identified. In accordance with the agreement of counsel, I ORDER that the government provide promptly on a rolling basis all recorded statements of the defendants, all logs of surveillance of the residence, and all wiretap evidence concerning the defendants to the extent it has not already done so.
In addition, the government agreed to provide the defendants with the dates certain for racketeering acts that were not charged, but at a later time tied to the trial date. The government likewise agreed to provide its expert disclosures, summaries and relevant past expert testimony at some point after the trial date is set. I will set these dates in the Case Management Order after the April 3, 2015 hearing.
Defendants also seek all statements by individuals whom the government does not intend to call as witnesses that reference Williams and/or the gang(s) in which he is alleged to have participated. The government agrees that it is required to provide individuals' statements concerning the defendants or Central Divis Playas if the statements are material to the defense, even if it decides not to call those individuals as witnesses. But the government argues that it has no obligation to disclose statements of other people whom they interview and decide not to call.
Both sides argue that United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999) supports their positions. In a thoughtful opinion, that court held that Brady required pre-trial disclosure of exculpatory information that is either admissible or is reasonably likely to lead to admissible evidence, but not disclosure of information that merely helps the defendant with trial strategy. The court required that the prosecutors produce all proffers from an accomplice witness with a leniency agreement.
Here, I heard both the defendants' generalized concerns that the government will not correctly identify statements likely to lead to admissible evidence, and the government's assertion that it knows its Brady obligations. The defendants' request, as presently drafted, is overbroad as it includes statements by anyone unfamiliar with the CDP, whether or not he or she is in a position to know of the CDP's existence. A narrower request informed by the discovery in this case may be consistent with Sudikoff, so I DENY this part of Williams's motion without prejudice.
The government also objects to providing "all material relevant to gang expert opinion" that its experts review in arriving at their opinions. The parties cited Paradis v. Arave (II), 240 F.3d 1169, 1178-80 (9th Cir. 2001), where the government failed to provide notes by a pathologist that should have been disclosed under Brady v. Maryland, 373 U.S. 83 (1963). Counsel for Williams stressed the importance of the production of gang intelligence information and their skepticism that the government has a sufficiently expansive view of its obligations to obtain and produce it. It is premature to reach this issue since gang experts have not been designated, let alone disclosed their opinions. As currently drafted and at this stage of the discovery, the request is overbroad and it is DENIED without prejudice. I will not make discovery rulings in a vacuum.
II. WILLIAMS'S MOTION TO PRESERVE DOCUMENTS (Dkt. No. 216)
The government did not oppose Williams's motion to preserve evidence. It is obviously critical that all relevant documents be preserved. Williams provided a proposed preservation order. I directed the parties to meet and confer and provide either an agreed proposed order or competing versions by January 30, 2015. I assume, since nothing has been filed since the hearing, that the proposed ...