Document 82

Case 1:20-cr-00330-AJN Document 82 Filed 11/09/20 Page 2 of 4 Page 2 search of 62 of the electronic devices seized from Epstein. After the issuance of that new warrant, the Government requested that the FBI re-produce the data from all 62 devices because the FBI's prior production had only included a subset of the seized data and had not identified which file came from which seized device. On or about August 3, 2020, the FBI finished providing the Government all of the documents from the seized devices, this time organized by device. Because this production included data that the filter team had not previously reviewed, the Government's filter team conducted a full privilege review on this entire set of data. On October 7, 2020, the filter team completed its privilege review of that data and released to the case team the non-privileged documents for responsiveness review. The Government completed its responsiveness review on October 21, 2020, having identified approximately 1.2 million documents as responsive to the either the original or the expanded warrant. That same night, the Government requested that its outside vendor image, bates stamp, and download all of the responsive documents for production to the defense. Although the Government believed at the time that it had left its outside vendor, which the Government has repeatedly informed of the November 9, 2020 discovery deadline in this case, sufficient time to complete the process of stamping and downloading these materials for production, unfortunately, despite the vendor's best efforts, it does not appear the vendor will be able to complete that process by November 9. In particular, on November 4, 2020, the vendor informed the Government that although it has finished imaging the responsive documents, it does not expect to finish bates stamping the responsive documents and loading them onto an external hard drive until November 19, 2020. The vendor will then send that drive to the Government. Once the Government receives the drive, it will need a short amount of time to spot check the production and confirm it can be sent to the defense. Given these estimates from the vendor, it will not be technologically possible to produce these responsive documents by the November 9, 2020 deadline. Accordingly, on November 4, 2020, the Government contracted defense counsel to confer regarding an extension of the discovery deadline solely for this production. After conferring, the parties have been unable to reach agreement on an extension. This morning, the defense indicated that they would consent to an extension of the deadline for this production to November 23, 2020 on four conditions. First, the defense asked that the motion deadlines in this case be extended by three weeks. The Government agrees with that proposal and accordingly requests that defense motions be due on January 11, 2021, Government responses be due on February 12, 2021, and defense replies be due on February 19, 2021. Second, the defense asked that the Government provide a laptop for the defendant to use to review her discovery inside the Metropolitan Detention Center ("MDC") by November 23, 2020. The Government has already purchased a laptop for such a purpose, and the MDC has agreed to allow the defendant use that laptop for discovery review once the Government's IT department has disabled all wireless and communications capabilities on the laptop. Accordingly, the Government agrees to meet this condition. Third, the defense asked that the Government provide it with the names of the three Minor Victims listed in the Indictment by November 23, 2020, and fourth, the defense asked that the Government provide the defense with all Jencks Act material by November 23, 2020. The Government cannot agree to the final two conditions set out by the defense, which have no connection to the two-week delay in completion of discovery and no basis in law. The DOJ-OGR-00001829 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 82 Filed 11/09/20 Page 3 of 4 Page 3 first two conditions are reasonably related to the delayed production. The three-week extension of the defense's deadline to file motions will ensure the defense has adequate time to review discovery before finalizing its motions and is therefore rationally related to the two-week delay in this production. Similarly, the requested laptop will expedite and streamline the defendant's review of discovery by avoiding technological delays on the MDC computer system that may otherwise slow the defendant's discovery review. By contrast, a two-week delay in the completion of discovery, caused by technical constraints on the part of an outside vendor, has no bearing on the defense's entitlement to a witness list or witness statements. This Court has already ruled that such a request is premature when the "parties have not yet engaged in discussions regarding an appropriate schedule for pretrial disclosures, including witness lists and § 3500 material." (Dkt. 49 at 1). The Court accordingly ordered that the parties "meet and confer on an appropriate schedule" "[f]ollowing the close of discovery." (Id. at 2). Consistent with that order, the Government is prepared to engage in good faith discussions with the defense about an appropriate schedule for disclosure of Jencks Act and Giglio material. The standard practice in this District is to produce such material shortly in advance of trial, a practice that has been widely held to be sufficient to satisfy the requirement that Giglio be produced "in sufficient time that the defendant will have a reasonable opportunity to act upon the information efficaciously." United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007). Immediate disclosure of such material is not warranted simply because the defendant prefers it. See, e.g., United States v. Wey, 15 Cr. 611 (AJN), 2017 WL 237651, at *23 (S.D.N.Y. Jan. 18, 2017) (denying defendant's motion for immediate disclosure of Giglio material as defendant "fails to articulate any persuasive reason why immediate disclosure is required in this case, and the Court otherwise sees no basis to deviate so substantially from the typical practice"); United States v. Thompson, 13 Cr. 378 (AJN), 2013 WL 6246489, at *9 (S.D.N.Y. Dec. 3, 2013) (denying request for early production of Jencks Act material); United States v. Davis, No. 06 Cr. 911 (LBS), 2009 WL 637164, at *14 (S.D.N.Y. March 11, 2009) ("The Second Circuit has held that a request for immediate or early disclosure [of Giglio material] has no basis in the law."). Because the Government's two-week delay in completing discovery does not entitle the defense to such materials more than seven months in advance of trial, the Government respectfully requests that the Court extend the deadline for this production to November 23, 2020 solely on the first two conditions set out by the defense. Other than these responsive documents from Epstein's electronic devices, the Government expects to complete its production of Rule 16 discovery to the defense by the November 9, 2020 deadline. In that vein, the Government is currently preparing its sixth discovery production to the defense, which will include, among other things, thousands of images and videos from Epstein's electronic devices identified as responsive to the expanded warrant, portions of iPads and an iPhone seized from Epstein identified as responsive to the expanded warrant, the four emails quoted in the Government's application for an expanded warrant, and documents from the FBI's Florida files. The Government expects to make that sixth production to the defense on November 9, 2020. Moreover, while the Government appreciates that the volume of materials it proposes to produce after the deadline is large, the Government has no reason to believe these materials will be central to any motion the defendant may seek to make. In particular, as noted above, all of DOJ-OGR-00001830