United States District Court, N.D. California
ORDER ON MOTION TO COMPEL
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE.
move to compel production of (1) “all documents
relating to plea negotiations with any person or their
counsel, including but not limited to Defendants, in which
the illegal, nonconsensual recordings were played or
referenced, or in which any information learned from the
illegal nonconsensual recordings was discussed” and (2)
“all documents relating to government communications
with Gajan Thia (‘Thia'), Juan Diaz
(‘Diaz'), or their counsel.” Not. of Mot. to
Compel (dkt. 201) at ii.
initial matter, the government maintains that this request
concerns documents that are not discoverable under Federal
Rule of Criminal Procedure 16(a)(2), which protects
“reports, memoranda, or other internal government
documents made by an attorney for the government or other
government agent in connection with investigation or
prosecuting the case.” That is partially true. To fall
under Rule 16(a)(2)'s work product protection, documents
“must be internal (nonpublic)
documents.” United States v. Fort, 472 F.3d
1106, 1120 n.5 (9th Cir. 2007). So a memorandum about, for
example, how a plea negotiation affected the government's
case strategy is a document “relating to plea
negotiations” that Rule 16(a)(2) protects.
Defendants' request, taken literally, is therefore
overbreadth is not fatal. The meat of the request is for (1)
any materials shown during any plea negotiations in which the
illegal recordings were played or referenced, or in which any
information learned from them was discussed, and documents
memorializing what the government said in such negotiations,
as well as (2) any materials shown to Thia, Diaz, or their
counsel, and any documents memorializing what the government
told them. Such discovery encompasses only what was shown or
said to third parties, and thus includes neither
“internal” documents nor “statements made
by prospective government witnesses, ” Fed. R. Crim. P.
16(a)(2). The question, then, is whether it is
“material to preparing the defense” under Rule
16(a)(1)(E)(i). It is.
the first category, the government maintains only that it has
provided Defendants with all documents regarding instances in
which the illegal recordings were “shown” to
others during plea negotiations. See Opp'n (dkt.
208) at 4. It makes no such assurances regarding instances in
which the recordings-or information obtained from them-were
referenced. See id. But even if that were an
oversight, this category of documents still goes to the
credibility of the government's contention that it did
not use the illegal recordings to “obtain any new
evidence, identify new subjects, develop new leads, or direct
the investigation.” See, e.g., Ex. 2-70 (Wynar
Decl.) ¶¶ 30, 36, 41, 44; Jan. 17 H'rg Tr.
15:10-16:2, 51:23-52:5. If the illegal recordings were
important enough to play a significant role in plea
negotiations (failed or otherwise), it becomes harder to take
the government at its word. That is impeachment value.
the second category, the government maintains that
“none of these reference stationary recordings, ”
which is supposedly beyond dispute because “Agent Wynar
already testified the FBI did not disclose the existence of
the stationary recordings to Mr. Thia at any time during the
investigation and Mr. Thia solicited Mr. Diaz's
cooperation without the FBI's involvement."
Opp'n at 5 (citing Jan. 19 H'rg Tr. at 310:8-24). But
far from being "unrefuted, " id, Defendants have
pointed to potential holes in his story. For example, Agent
Wynar testified that Thia spontaneously agreed to cooperate
but apparently did not mention any such bonanza in his 302
report-and continued investigating Thia afterwards.
See Mot. to Compel (dkt. 201) at 8 (citing Jan. 19
H'rg Tr. 310:1-18; Ex 2-85 (FBI 302, Thia Interview, Jan.
29 2010); Ex. 2-86 (CHS Contact Rpt, Feb. 3, 2010)); see
also Opp'n at 5 (not disputing these facts). What is
more, Agent Wynar need not have informed Thia about the
"existence" of the illegal recordings, Opp'n at
5, for there to be a taint; he could have still relied on
information obtained from them to convince Thia to cooperate.
So, unlike United States v. Bissell 634 F.2d 1228,
1233 (9th Cir. 1980), here it is not "so clear that the
evidence . . . was obtained independently" as to make
foregoing reasons, the Court ORDERS the government to
disclose (1) any materials shown during any plea negotiations
in which the illegal recordings were played or referenced, or
in which any information learned from them was discussed, and
documents memorializing what the government said in such
negotiations, as well as (2) any materials shown to Thia,
Diaz, or their counsel, and any documents memorializing what
the government told them. The Court further ORDERS the
government to do so no later than February 20, 2017.
 Rule 16 encompasses “government
work product and ha[s] its genesis in the idea of work
product, ” though it sweeps “more broadly”
than its civil counterpart. United States v. Fort,
472 F.3d 1106, 1114 (9th Cir. 2007).
 The latter category is of course still
subject to the Jencks Act. See Fed. R. Crim. P.
16(a)(2) (“. . . except as provided in 18 U.S.C. ...