EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, February 2, 2010

Reasonable Doubt: Seventh Circuit Finds That Data Disclosure Was Reasonable For Rule 1006 Purposes

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

In its recent opinion in United States v. Isaacs, 2010 WL 252278 (7th Cir. 2010), the Seventh Circuit addressed the issue of whether the government made available to a defendant duplicates for examination and/or copying at a reasonable place and time. The Seventh Circuit found that it did, but I am not sure that I agree.

In IsaacsMark O. Isaacs was convicted of fraudulently using unauthorized access devices. The prosecution procured Isaacs' conviction in large part through the presentation of several summary exhibits, which were created from CDs containing voluminous computer records

At [a pretrial] hearing, Isaacs argued that, just three days before trial, his stand-by counsel had received a new set of CDs containing voluminous computer records from the government. He asserted that he needed more time to compare the data on the new set of CDs, which comprised the underlying data used to compile the summary exhibits, to that which had been previously produced by the government on an earlier set of CDs. Isaacs further explained that the new set of CDs contained 25,000 pages of data and because it would take about six or seven hours to print the data, a continuance was warranted.

In response,

The government's counsel...represented that the new set of CDs contained the same underlying data that had been previously disclosed to Isaacs in 2006 on the earlier set of CDs. The government produced a new set of CDs before trial because the earlier set of CDs contained extraneous and inadmissible information, and one set of data lists was difficult to read. On the new set of CDs, the government redacted information related to a defendant in another case and PrimeCo and West Interactive data that was not related to the summary exhibits in this case. The government also converted one set of data lists from Microsoft Excel to Microsoft Access to make it more readable. The government's counsel explained that the redaction of the data and reformatting change did not effect the summary exhibits: they remained the same. Furthermore, the government's counsel had an understanding with Isaacs's prior counsel that the new set of CDs would be produced closer to trial and would only include the underlying data used to prepare the summary exhibits. The government's counsel stated there was a delay in producing the new set of CDs because the PrimeCo employee responsible for the summary exhibits no longer worked at the company.

The district court agreed withe government that it had complied with Federal Rule of Evidence 1006, and the Seventh Circuit subsequently affirmed, finding 

Isaacs's contention that the government violated Rule 1006 without merit. As discussed above, the government produced the earlier set of CDs containing the underlying data used to create the summary exhibits to Isaacs in 2006. Thus, Isaacs had at least fifteen months to review the data and compare it to the summary exhibits to determine if there were any inaccuracies; he does not claim in this appeal that the underlying data or summary exhibits were inaccurate or erroneous. Because the government complied with Rule 1006, the district court properly admitted the summary exhibits into evidence.

I'm not sure that I agree. First, by the government's own admission, at least one set of data lists in the original set of CDs was difficult to read. The government only produced the new set of CDs with the more readable data list three days before trial. That doesn't seem especially reasonable to me. Nor do I find the fact that the government produced the original set of CDs in 2006 to be dispositive. According to the government, the new set of CDs contained 25,000 pages of data. This means that the original set of CDs, which contained extraneous and prejudicial information, must have been more than 25,000 pages. I don't see how it was reasonable or fair to force the defense to wade through so much useless information, even if it had fifteen months to complete the task. 

But there's no reason to trust my opinion on the matter. The government admitted that it had an agreement with Isaacs' prior counsel to produce the new set of CDs closer to trial but (ostensibly) well earlier than three days before trial. It thus seems clear that defense counsel thought that it was important to have the new set of CDs sufficiently in advance of trial, with their production only being delayed by an error. This being the case, I don't see why the district court refused to grant the continuance.



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