United States v. Savedoff

• Decision Date: 25 May 2017
• Docket Number: 16-CR-41G
• Parties: United States of America v. Laurence Savedoff, Defendant.
• Court: U.S. District Court — Western District of New York

United States of America v. Laurence Savedoff, Defendant.

16-CR-41G

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

May 25, 2017

Amended Decision and Order

I. INTRODUCTION AND BACKGROUND

On April 18, 2017, defendant Laurence Savedoff ("Savedoff") filed a motion to compel discovery from the Government under Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. (Dkt. No. 83.) The discovery in question is a hard drive that a woman named JaLynda Burford ("Burford") turned over voluntarily to the Government. Burford is a former employee of a mortgage lender called The Funding Source ("TFS"), an alleged victim of Savedoff and the other defendants in the case. Toward the end of her time at TFS, Burford allegedly was asked by company officials to destroy a range of documents and email messages in her possession. Burford did not do so and preserved them on an external hard drive, the hard drive now in question.

Savedoff wants a copy of the hard drive because it might provide documentary evidence that TFS owners and employees defrauded banks in ways that resemble the fraudulent conduct lodged against him in the indictment. Specifically, "[t]he agents [investigating TFS in a separate matter] interviewed witnesses who stated that TFS owners and employees actually participated in that same fraudulent conduct. If TFS and its employees were complicit in the offense, the theory of the indictment is false and the defendants could not be convicted of defrauding a conspirator. The Government concedes that it presently anticipates it will call a representative of TFS as a government witness at trial. The defense can use the information that TFS sought to destroy to confront and cross-examine that witness at trial." (Dkt. No. 91 at 3-4.) To the extent that Burford has expressed privacy concerns to the Government—the hard drive in question apparently contains music files, personal email messages, and other personal documents that have nothing to do with the case and that Burford just happened to keep on the same storage medium—Savedoff believes that the protective order already in place (Dkt. No. 20) suffices to address those concerns.

The Government has responded to Savedoff's motion in two ways. With respect to the substance of Savedoff's characterization of "unclean hands" conduct at TFS, the Government asserts that "whether or not The Funding Source was involved with the fraud is irrelevant to whether or not the defendants committed the mortgage fraud charged in the indictment." (Dkt. No. 89 at 3.) Nonetheless, the Government is not opposed to sharing information on the hard drive that might have some bearing on this case, regardless of its position on how relevant that information really is. Specifically, the Government has offered to share an exact copy of a folder on the hard drive labeled "TFS"; to run searches of email messages in another folder labeled "All Other," based on terms that Savedoff proposes; and to have defense counsel come to its office to review the entire hard drive. Savedoff has rejected the Government's offer. Savedoff believes that the hard drive in its entirety falls under Rule 16(a)(1)(E), meaning that he is entitled to see it in its entirety and is not limited to the Government's decisions about what might be relevant. Savedoff also objects that giving the Government search terms for the email messages would improperly reveal his potential defense strategies.

The Court held oral argument on May 17, 2017. At oral argument, the Government provided a clarification of an issue that the parties had addressed in their motion papers—the issue of imaging. Law enforcement agents communicated with Burford twice, in 2013 and 2016. Agents copied Burford's hard drive only in 2013, leaving the Government with one copy of the hard drive. Until oral argument, the parties appear to have assumed that the copies made of Burford's hard drive were forensic copies or mirror images of the hard drive. At oral argument, the Government confirmed that its copy of the hard drive is not an image but only a copy of files made by ordinary means—for example, through the standard copy utility of a typical computer operating system.

The Court issued a Decision and Order on May 23, 2017 that granted Savedoff's motion in part. (Dkt. No. 93.) While trying to discern what happened with respect to forensic images versus ordinary copies, the Court misunderstood how many times the Burford hard drive had been copied. Through a motion for clarification (Dkt. No. 94), the Government confirms that law enforcement agents copied the Burford hard drive only once, through ordinary means, in 2013. The Court issues this Amended Decision and Order accordingly. As seen below, the prior analysis stands, but the directive to produce is now clarified to address any copies of the Burford hard drive in the Government's possession, which would appear to be the one copy from 2013.

II. DISCUSSION

"Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government'spossession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." Fed. R. Crim. P. 16(a)(1)(E). "Materiality, of course, must be assessed against the backdrop of all the evidence presented to the jury. It has been said that [m]ateriality means more than that the evidence in question bears some abstract logical relationship to the issues in the case. There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor." United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) (internal quotation and editorial marks and citation omitted). At the same time, "[e]vidence that the government does not intend to use in its case in chief is material if it could be used to counter the government's case or to bolster a defense." United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993) (citations omitted).

Here, the Government's copy of the Burford hard drive qualifies as either a collection of electronic documents, or as a tangible object in connection with the original hard drive. The original hard drive was returned to Burford,...