In U.S. v. Morgan, No. 1:18-CR-00108 EAW (W.D.N.Y. Oct. 8, 2020), New York District Judge Elizabeth A. Wolford, while noting that “the government has mishandled discovery in this case” and that “the statutory speedy trial clock has expired, and the Superseding Indictment must be dismissed”, ruled that “a dismissal with prejudice is unwarranted” further concluding that “Defendants’ constitutional rights to a speedy trial have not been violated.”
In this criminal case involving multiple defendants leading to a 114-count Superseding Indictment returned by a federal grand jury involving an alleged scheme to defraud financial institutions and government-sponsored enterprises Freddie Mac and Fannie Mae, a Scheduling Order was filed memorializing the deadlines discussed during the status conference on that same date, confirming that all voluntary discovery must be produced by July 31, 2019. Related to that deadline, the Magistrate Judge stated in a status conference in May 2019 “I also need to have some sort of control and, put it point blank and bluntly, a club” to hold the government accountable regarding it’s obligations to meet the deadlines.
The defendants each filed motions to dismiss the case on speedy trial grounds over discovery delays and mistakes, which included:
- Failing to process three laptops by the deadline that had been collected during the investigation;
- Failing to process and produce discovery from defendant Robert Morgan’s iPhone;
- Various metadata deficiencies and inconsistencies in the government’s electronic discovery productions, including 860,522 originally missing DATE metadata, missing values for the metadata fields of FILE EXTENSION, MD5 HASH, PATH, CUSTODIAN, MIME TYPE, and FILE SIZE and other CUSTODIAN field values that were “just a series of numbers and letters that had no apparent meaning or connection to anybody”;
- Inadvertent disclosure of approximately 11,500 documents (16,900 documents including family members) that contained a privilege term.
In an evidentiary hearing in July of 2020 where various eDiscovery experts testified regarding the discovery deficiencies by the government, the government’s expert witness noted different processing tools had been used for different portions of the ESI collection and that different settings had been used as well. He also testified that it has been the “custom in electronic discovery for the last couple of decades” to produce files extracted off of OSTs and PSTs and when the defendants reprocessed the ESI and extracted metadata that was not previously produced, they were using “their processing tool on a different set of information than the government did”—namely the EMLs that were provided, not the original source OST and PST files from which the EMLs were derived.
While stating that “[t]here is no question that the government’s conduct was, at times, sloppy and inconsistent, and this led to various problems with the discovery”, Judge Wolford also noted: “while it is not Defendants’ burden to ensure the government’s compliance with its Rule 16 obligations, any electronic discovery production of this nature necessarily requires parties to work together (with the assistance of IT personnel) to sort through issues in the production. While the Magistrate Judge’s imposition of a ‘club’ at the May 29, 2019 status conference was intended to promote the government’s compliance with its Rule 16 obligations, it ultimately had the effect of incentivizing Defendants to establish the government’s noncompliance with its discovery obligations (as opposed to motivating the parties to work together to resolve any electronic discovery issues). Thus, while the impetus for the ‘club’ was plainly driven by the historical failures of the government to meet the deadlines set by the Magistrate Judge, instead of rectifying those problems it ultimately spurned extensive litigation on whether the government had failed to comply with the July 31, 2019 deadline.”
Judge Wolford also considered “three factors that a court must consider when deciding whether a speedy trial dismissal should be with prejudice: (1) the seriousness of the offense; (2) the facts and circumstances of the case which led to the dismissal; and (3) the impact of a reprosecution on the administration of the Act and the administration of justice.” Finding that two of the three factors weighed against prejudice, Judge Wolford stated: “It is evident that the government has demonstrated a disturbing inability to manage the massive discovery in this case, and despite repeated admonitions from both this Court and the Magistrate Judge, the government’s lackadaisical approach has manifested itself in repeated missed deadlines… On the other hand, managing the discovery in this case is a tremendous undertaking and under the best of circumstances, issues surrounding electronic discovery would inevitably arise requiring a back-and-forth between the parties. Defendants are charged with offenses that are extremely serious, and on balance the delay and any prejudice suffered by Defendants is not significant enough to warrant a dismissal with prejudice. Accordingly, for the reasons discussed in further detail below, the dismissal on statutory speedy trial grounds is without prejudice.”
So, what do you think? Do you agree that the case should have been dismissed without prejudice? Please share any comments you might have or if you’d like to know more about a particular topic.
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