I address only the larger issue of the ground rules for the prosecutors' obligations when making mass document disclosures, often referred to as an open file policy. In large white collar cases, including large tax crimes cases (such as Ohle and the KPMG related criminal cases), the turnover of massive quantities of documents is common. The Court had an interesting discussion of the ground rules that apply. I quote (footnote omitted):
Defendants contend that the Government cannot discharge its Brady obligations by turning over exculpatory documents as part of "a voluminous file that is unduly onerous to access." Def. Reply Mem. at 2 (quoting United States v. Skilling. 554 F.3d 529, 577 (5th Cir. 2009), aff'd in part and vacated on other grounds, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010)). In this case, defendants note that the "database that the government produced comprises several gigabytes of data, including millions of separate files extending to several million pages in length. [Moreover], the 'database' consists of nine separate databases . . . [, and any] document search has to be conducted on a database-by-database basis." Id. Defendants cite United States v. Salyer, Cr. No. S-10-0061 LKK (GGH), 2010 WL 3036444 (E.D. Cal., Aug. 2, 2010), to the effect that "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." Id. at *6 (quoting 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)). Thus, defendants maintain that even though all of the documents at issue were available for inspection upon request and all but a handful were included as part of the pretrial electronic discovery, the Government violated Brady because the materials were unduly onerous to access.
However, the principal case defendants cite in support of this proposition, United States v, Skilling, 554 F.3d 529, 577 (5th Cir. 2009), is far more nuanced that defendants suggest. The Fifth Circuit first noted that there is "little case law on whether a voluminous open file can itself violate Brady, and the outcomes of these cases seem to turn on what the government does in addition to allowing access to a voluminous open file." 554 F.3d at 577. In Skilling, the Government "did much more than drop several hundred million pages on Skilling's doorstep." Id. Instead, the file was electronic, indexed, and searchable, and the Government highlighted particularly relevant documents. Id. Although Skilling argued that the Government should have scoured the open file in search of every piece of potentially exculpatory evidence, the Court determined that the Government "was in no better position to locate any potentially exculpatory evidence than was Skilling." Id. Thus, although the Court did not hold that the use of a voluminous open file could never violate Brady, especially if there were "evidence that the government 'padded' an open file with pointless or superfluous information to frustrate a defendant's review of the file," the Court determined that, in light of "the additional steps the government took beyond merely providing Skilling with the open file, the equal access that Skilling and the government had to the open file, the complexity of Skilling's case, and the absence of evidence that the government used the open file to hide potentially exculpatory evidence or otherwise acted in bad faith, we hold that the government's use of the open file did not violate Brady." Id.
The general principles articulated by the Skilling court are particularly relevant here. Undoubtedly there were many documents — not least because of the efforts that the defendants and their coconspirators took to obscure their egregious fraud — but the Government, to facilitate review of the documents, provided defense counsel with an electronically searchable Concordance database. Both the Government and defense counsel had equal access to this database. Thus, the defendants were just as likely to uncover the purportedly exculpatory evidence as was the Government. Moreover, as a general rule, the Government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence. See United States v. Mulderig, 120 F.3d 534, 541 [5th Cir. 1997); United States v. Alvarado, No. 01 Cr. 156 (RPP), 2001 U.S. Dist. LEXIS 21100, at *13-14 (S.D.N.Y. 2001) ("The Defendants have pointed to no authority for the proposition that where there is a large mass of material that has been made available to the Defendants, it is the Government's duty to root out Brady material for the Defendants. Indeed the only authority is to the contrary.")
The defendants further argue that, notwithstanding the equal access of both sides to the database in question, the Government may have a heightened obligation to uncover exculpatory evidence in light of its allegedly extensive resources and subpoena powers. See 01/13/11 Transcript. The Court rejects this argument. "While the Supreme Court in Brady held that the Government may not properly conceal exculpatory evidence from a defendant, it does not place any burden upon the Government to conduct a defendant's investigation or assist in the presentation of the defense's case." United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990). Placing a higher burden on the Government to uncover such evidence would place prosecutors in the untenable position of having to prepare both sides of the case at once. Indeed, the adversarial system presumes that the defense will be more highly motivated to uncover exculpatory evidence, so if anything the onus is on defense counsel to conduct a more diligent search for material potentially favorable to his client. This is especially true considering that, if exculpatory evidence exists, the defense is in the best position to know what such evidence might be and where it might be located.
As the Court noted in United States v. Skilling, 554 F.3d 529, 577 [5th Cir. 2009), exceptions to these general principles may exist if it is found that the Government deliberately hid documents within a larger mass of materials or somehow purposefully confounded the defendant's search for exculpatory material. As this Court previously found, however, see 01/13/11 Transcript at 26, there is no evidence of bad faith that has been proffered in this case. Accordingly, the Court holds that the Government did not violate Brady by failing to specifically highlight the particular documents defendants now claim are relevant to the defendants' case.