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ELIZABETH A. STRANGE

First Assistant United States Attorney District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 14249, kevin.rapp@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) 

ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)

JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov) 

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

BRIAN BENCZKOWSKI 

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov)

Senior Trial Attorney, U.S. Department of Justice Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

CR-18-422-PHX-SPL (BSB) 

UNITED STATES’ RESPONSE TO

MOTION FOR ITEMIZATION OF 

BRADY/GIGLIO MATERIAL

[CR 273]

INTRODUCTION

More than 11⁄2 years before trial and six months before its Rule 16 discovery 

deadline, the government delivered to defense counsel two hard drives of discovery in

searchable electronic format. CR 131; CR 273-01. The government took several additional 

steps to facilitate Defendants’ review of this evidence. Among other things, the 

government: (1) provided indices with descriptions and bates number references to allow 

the defense to focus their review; (2) disclosed a subset of “hot” documents that support 

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the allegations in the indictment; (3) undertook to produce the Backpage.com ads 

concerning the victims identified in the indictment; and (4) made available a Department 

of Justice (DOJ) discovery specialist to assist with technical questions. See CR 273 at 4; 

CR 273-2 at 6-7.

Defendants assert this is not enough. They demand the government “itemize” all 

“Brady materials” within the discovery now in their possession. CR 273 at 4. Defendants 

essentially ask this Court to adopt a rule that when the amount of discovery reaches some 

unspecified threshold, the government must search for and segregate all materials that 

might support the defense. Yet every Circuit Court of Appeals and the vast majority 

of district courts to consider this issue have rejected the very argument Defendants 

assert here. These courts have repeatedly held that the government has no obligation to 

cull from discovery in the defendants’ possession any materials arguably favorable to the 

defense. Defendants seek to impose obligations on the government that are far outside the 

normal practice in this District, inconsistent with national e-discovery protocols (coauthored by the defense bar), and well beyond what the law requires. Defendants’ motion 

should be denied.1

ARGUMENT

I. THE GOVERNMENT PROVIDED EXTENSIVE EARLY DISCOVERY.

A. The Government Supplied Detailed Pre-Indictment Disclosures. 

On December 21, 2017, months before the grand jury indicted Defendants, 

prosecutors personally met with Mr. Padilla’s counsel for several hours to discuss the 

government’s theory of the case and preview some of the government’s key documents. 

(See Exhibit A hereto (emails between Mr. Piccarreta (counsel for Mr. Padilla) and 

prosecutors from December 2017); CR 273-2 at 6.)2

 The government then emailed to Mr. 

 

1 Defendant Andrew Padilla filed the instant motion, and all co-defendants (except Dan Hyer) have joined. See CRs 275 (Vaught), 276 (Spear), 277 (Larkin), 278 (Lacey), 279 (Brunst). Padilla and the joining parties are collectively referred to as “Defendants” herein. 

2 In addition, the U.S. Senate Permanent Subcommittee on Investigations’ January 2017 

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Padilla’s counsel more than 100 pages of documents, spreadsheets and presentations that 

were discussed at the meeting. (See id.)3 

B. Post-Indictment, the Government Followed the ESI Protocol and 

Produced Approximately 10 Million Pages of Documents in Searchable 

Electronic Format.

In February 2012, the Administrative Office of the U.S. Courts published

“Recommendations for Electronically Stored Information (ESI) Discovery Production in 

Federal Criminal Cases” (commonly referred to as the “ESI Protocol”), available at 

http://www.uscourts.gov/sites/default/files/finalesiprotocolbookmarked.pdf. The 

introduction to the ESI Protocol explains that it was created in 2012 by a joint working 

group composed of “representatives of the Administrative Office of U.S. Courts’ (AOUSC) 

Office of Defender Services (ODS), the Department of Justice (DOJ), Federal Defender 

Organizations (FDO), private attorneys who accept Criminal Justice Act (CJA) 

appointments, and liaisons from the United States Judiciary and other AOUSC 

offices.” ESI Protocol, Introduction at 1. The introduction further states that the ESI 

Protocol reflects the collective views of the defense bar, the DOJ, and the federal judiciary 

as to “best practices for the efficient and cost-effective management of post-indictment ESI 

discovery between the Government and defendants charged in federal criminal cases.” Id.

The ESI Protocol states that (1) the parties should meet at the outset of the case to 

“discuss what formats of production are possible and appropriate . . . . Any format selected 

for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, 

reasonably limit costs, and, if possible, conform to industry standards for the format”; and 

(2) that “[w]hen producing ESI discovery, a party should not be required to take on 

 report, “Backpage.com’s Knowing Facilitation of Online Sex Trafficking” and the 

accompanying 843-page Appendix, provide a comprehensive explanation of Mr. Padilla’s 

role within Backpage.com. See CR 273-2 at 6; 

https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20F

INAL.pdf (Senate Report); 

https://www.hsgac.senate.gov/imo/media/doc/Final%20Appendix%202017.01.09.pdf (Appendix).

3 When other defense counsel have requested specific documents relevant to their clients, 

the government has complied and has met with counsel to review the documents and 

answer any questions they might have.

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substantial additional processing or format conversion costs and burdens beyond what the 

party has already done or would do for its own case preparation or discovery 

production.” ESI Protocol, Introduction at 1-2 (summarizing Principles 4 and 5). The ESI 

Protocol also suggests that, even if a case involves millions of pages of discovery, the 

government does not have any special obligations in Brady so long as it produces the ESI 

in a searchable format, provides a table of contents, and produces a subset of “hot 

documents.” ESI Protocol, Strategies at 2 & n.1 (citing United States v. Skilling, 554 F.3d 

529 (5th Cir. 2009)).

The government satisfied all of these requirements here. Almost immediately after 

indictment, the prosecution met and conferred with the defense to discuss how the ESI in 

this high-volume case would be produced. CR 273-2 at 5. During this process, everybody 

agreed that it would be acceptable for the government to produce the ESI in an industrystandard format – word-searchable load files that could be reviewed using Relativity, a 

commonly-used discovery platform. CR 273-2 at 5-6. See Massuda v. Panda Express, 

Inc., 2014 WL 148723, *4 (N.D. Ill. 2014) (“Relativity is ‘a standard document 

management service that allows attorneys to organize, manage and review documents 

electronically in connection with litigation.’”). Once loaded, searches – including for key 

words, phrases and file types – can be run across the entire database. The documents can 

also be searched and retrieved by bates numbers. The government has provided the 

documents to Defendants in the same format in which the government has them.4

 

During the status conference before Judge Logan on April 30, 2018, the government

specifically discussed the plan to disclose the ESI in a Relativity-accessible format. See

CR 137, Tr. 4/30/18 at 5-6 (AUSA Rapp: “[W]e are in the process of assimilating the 

discovery. We’re using a database by the name of Relativity. The discovery is being 

 

4 The government cannot provide the defense with Relativity itself, because Relativity is a 

commercially-available, propriety program that cannot be transferred from a licensed user 

to a non-licensed user. In addition, security concerns prohibit the government from allowing defense counsel direct access to the Relativity platform used by the DOJ. See CR 

273-2 at 6. 

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imported into that platform. We are going to provide the defense a hard drive that will 

have all of the discovery.... [W]ithin 60 days we will provide them bulk of the discovery 

that is contained – that we have in our possession.”); id. at 7 (in response to Judge Logan’s 

question “What’s the fastest you can get this discovery together on this new platform that 

you have?”, the government responded “Well, we think that within 60-days we could 

provide them anywhere from 7 million to 9 million [pages], and those fall into various 

categories.”). All of the defense attorneys, including Mr. Padilla’s counsel, were present 

during this hearing and agreed to this approach. See CR 137, Tr. 4/30/18 at 1-14.

After the hearing, the Court issued a Scheduling Order setting the government’s 

deadline for initial compliance with Rule 16 discovery for December 3, 2018. CR 131 at 

1. The Order noted “[t]he United States represents that it intends to provide the majority 

of the discovery within 60 days” of the Court’s issuance of the Order. CR 131 at 1 n.2. 

The Order set trial for January 15, 2020. See CR 131 at 1-3. 

Since the Order issued, the government has done exactly what it committed to do 

(and what the defense agreed would be acceptable) during the meet-and-confer process –

produce ESI in a Relativity-friendly format. On May 24, 2018, the government produced 

two hard drives to Defendants containing approximately 10.4 million pages of documents. 

CR 273-1. Many of the produced documents consist of emails and/or other documents that 

Defendants authored, received or reviewed during the events at issue. Although Fed. R. 

Crim. P. 16 only requires that the government permit the defendant to inspect and copy 

discovery, the government has spent a significant amount of time and money to produce 

the discovery to Defendants in an agreed-upon, electronic, searchable, industry-standard 

format. See CR 273-1 at 1-2; CR 273-2 at 5-6. Furthermore, the government created 

indices to assist the defense in navigating the discovery; produced a subset of “hot”

documents that support the allegations in the indictment; undertook to produce 

Backpage.com ads relating to specific victims and other documents supporting the 

superseding indictment; and made arrangements for a DOJ discovery specialist in 

Washington, D.C., to assist defense counsel with certain technical questions. See CR 273-

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1 at 1-2; CR 273-2 at 5-6.5 The ESI Protocol (which reflects the views of the defense bar) 

makes clear that such conduct satisfies the government’s discovery obligations and that the 

government “should not,” as Defendants request here, “be required to take on substantial 

additional...burdens beyond what the party has already done or would do for its own case

preparation or discovery production.” ESI Protocol, Introduction at 1-2. Notably, 

Defendants’ motion does not even specify an alternative production format (i.e., other than 

Relativity) that would be acceptable them – Defendants simply complain about the 

government’s decision to produce the discovery in an industry-standard format Defendants

previously acknowledged would be acceptable. See CR 273-2 at 6.

The bottom line is that the government has produced discovery in searchable 

electronic format – and taken several additional steps to facilitate Defendants’ review.

II. BRADY DOES NOT REQUIRE THE GOVERNMENT TO IDENTIFY 

EVIDENCE FAVORABLE TO DEFENDANTS IN DISCOVERY THAT 

DEFENDANTS POSSESS.

Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution to disclose 

evidence favorable to the accused when such evidence is material to guilt or punishment. 

Such material must be disclosed in time for its effective use at trial. Id. At the same time, 

“[w]hile 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); see also United States v. 

Shoher, 555 F. Supp. 346, 352 (S.D.N.Y. 1983) (“The Government is not required . . . to 

facilitate the compilation of exculpatory material that, with some industry, defense counsel 

could marshal on their own.”).

As summarized above, the government produced – some twenty months before trial 

 5 The government is preparing to produce victim-related materials and additional 

documents supporting the superseding indictment. It anticipates completing privacy redactions and finalizing the production within the next two to four weeks. In addition, on 

August 14, 2018, the government identified and produced specific documents from the 

“Co-Star” hard drive the government believes are relevant and might be utilized at trial. The government will continue to produce, in the coming months, any additional, relevant 

Co-Star materials.

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– the discovery materials that are the subject of this motion. At its own expense, the 

government produced the documents electronically, in industry-standard searchable 

format, accompanied by detailed indices. The government has also produced a subset of 

“hot” documents; undertaken to produce advertisements relating to specific victims; and 

offered the technical assistance of a DOJ discovery specialist. By taking all of these steps, 

the government has gone beyond its discovery obligations under Rule 16 and Brady.

Defendants assert that this is not enough – they claim that the law requires the 

government to search these materials and pull out anything favorable to the defense. 

Contrary to Defendants’ assertions, the Ninth Circuit has recognized the government 

generally has no obligation to “single out” particular pieces of exculpatory evidence. 

Rhoades v. Henry, 638 F.3d 1027, 1039 and n.12 (9th Cir. 2011); see also United States v. 

Toomer, 2018 WL 3745815, at *8 (D. Nev. Aug. 6, 2018) (rejecting defendant’s assertion 

“that because the amount of discovery is massive, the government must identify Brady and 

Giglio material”; agreeing that the government has “no additional duty to identify 

potentially defense-favorable information from the disclosed materials because [the 

defendant’s] lawyers are best suited to determine the usefulness of the information”) (citing 

Rhoades, 638 F.3d at 1039 n.12); United States v. AU Optronics Corp., 2011 WL 6778520, 

at *1 (N.D. Cal. Dec. 23, 2011) (denying defense motion to compel government to identify 

Brady materials in 37 million pages of discovery; holding that the government typically 

has no obligation to single out particular pieces of exculpatory evidence); United States v. 

Dunning, 2009 WL 3815739, at *1 (D. Ariz. Nov. 12, 2009) (“Here, the Government is 

not suppressing any information because Dunning has the same access to the [hard drives]

that the Government does. Brady does not mean that the Government must take the 

evidence that it has already disclosed to Defendant, sift through this evidence, and organize 

it for Defendant’s convenience.”); United States v. W.R. Grace, 401 F. Supp. 2d 1069, 

1080-81 (D. Mont. 2005) (government complied with discovery obligations by producing 

3,389,109 pages in electronically searchable format; “[a]s it relates to the manner of 

production, Brady simply requires that information be produced in such a way that it will 

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be of value to the accused”). Cf. United States v. Slade, 2011 WL 5291757, at *4 (D. Ariz. 

Sept. 30, 2011) (denying Rule 48(b) dismissal where “the discovery has been provided to 

Defendants in a timely fashion, much of the discovery is comprised of [defendants’]

documents, and the Government has gone to great lengths to ensure that the discovery 

provided is organized and reasonably searchable”).

Every Circuit Court and the vast majority of district courts that have considered 

similar requests have held that the government has no obligation to cull through discovery 

it has produced to find material potentially helpful to the defense. See, e.g., United States 

v. Warshak, 631 F.3d 266, 297 (6th Cir. 2010) (“[D]efendants contend that the government

was obliged to sift fastidiously through the evidence – the vast majority of which came 

from Berkeley itself – in an attempt to locate anything favorable to the defense. This 

argument comes up empty.”); United States v. Skilling, 554 F.3d 529, 576-77 (5th Cir. 

2009) (no Brady violation where government produced several hundred million pages of 

documents in searchable electronic form), reversed in part on other grounds, 561 U.S. 358 

(2010); United States v. Pelullo, 399 F.3d 197, 212 (3d Cir. 2005) (Brady “permit[s] the 

government to make information within its control available for inspection by the defense, 

and impose[s] no additional duty on the prosecution team members to ferret out any 

potentially defense-favorable information from materials that are so disclosed”); United 

States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997) (where government gave defense access 

to 500,000 pages of documents, no obligation arose under Brady to “point the defense to 

specific documents within a larger mass of material that it has already turned over”), 

abrogated on other grounds, United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 

2004); United States v. Parks, 100 F.3d 1300, 1307 (7th Cir. 1996) (no Brady violation 

where defendants had same opportunity as government to discover the identified 

documents “through the exercise of reasonable diligence”); United States v. McGill, 2016 

WL 48214, at *10 (E.D. Penn. Jan. 5, 2016) (rejecting defense assertion that government 

had duty to specifically identify Brady and Giglio material within voluminous discovery 

materials, where government provided the discovery “in a form that could easily be loaded 

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into and searched through an electronic database,” provided discovery logs, and made 

personnel available to assist during the defense’s review, and where defendant was not 

detained and was available to assist defense counsel in reviewing the documents); United 

States v. Weaver, 992 F. Supp. 2d 152, 156 (E.D.N.Y. 2014) (denying motion for 

itemization of Brady material where the government “provided detailed indices for all the 

materials it produced, the majority of which were provided in both PDF and ‘load-ready’

file format that could be easily searched”); United States v. Rubin/Chambers, Dunhill Ins. 

Servs., 825 F. Supp. 2d 451, 457 (S.D.N.Y. 2011) (“the Government has provided 

Defendants with access to all potential Brady material and has taken additional steps to 

facilitate Defendants’ review of that material” by providing “searchable electronic 

productions,” “indices describing documents related to the Featured Transactions” and 

“indices of audio recordings”).

6

 

These cases all hold that the government is neither responsible for preparing the 

defense nor in a better position to identify exculpatory material than the defense. For 

example, a defendant in the Enron case who stood trial less than two years after indictment, 

argued – like Defendants here – that the volume of discovery prevented the effective review 

of the government's disclosure. Skilling, 554 F.3d at 576. The Fifth Circuit refused to 

order the government to cull favorable material from several hundred millions of pages of 

documents (a far greater amount than here), holding “the government was in no better 

position to locate any potentially exculpatory evidence.” Id. at 577. The Southern District 

of New York has similarly held:

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 

 

6 Accord United States v. Mohammad, 2012 WL 1605472, at *2 n.3 (N.D. Ohio May 8, 2012); United States v. Ohle, 2011 WL 651849, at *4 (S.D.N.Y. Feb. 7, 2011); United 

States v. Ferguson, 478 F. Supp. 2d 220, 242 (D. Conn. 2007); United States v. Eisenberg, 773 F. Supp. 662, 687-88 (D.N.J. 1991).

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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.

Ohle, 2011 WL 651849 at *4.

In addition to Skilling, several cases with similar holdings have involved discovery 

dwarfing the amount involved here. See, e.g., AU Optronics Corp., 2011 WL 6778520 at 

*1 (37 million pages); Simpson, 2011 WL 978235 at *8-*9 (200 terabytes); Dunning, 2009 

WL 3815739 at *1 (holding, in a case involving 22 hard drives of discovery, that “Brady

does not mean that the Government must take the evidence that it has already disclosed to 

Defendant, sift through this evidence, and organize it for Defendant's convenience”).

The contrary district court cases Defendants cite are easily distinguishable. Cf. CR 

273 at 5-9. In United States v. Hsia, 24 F. Supp. 2d 14, 28-30 (D.D.C. 1998), the 

government produced 600,000 hardcopy documents to a sole defendant. The court 

indicated that the government had not even provided the defendant with an index that 

would allow her to find her own statements without going through the 600,000 documents. 

Id. at 28. Here, in contrast, the government has produced discovery in an electronic, 

searchable format, accompanied by detailed indices, to seven defendants. CR 273-1 at 1. 

In United States v. Salyer, 2010 WL 3036444, at *3, *6, (E.D. Cal. Aug. 2, 2010), 

while much of the government’s discovery was produced in searchable electronic format, 

the government also produced “hard paper information [that] fills more than two ‘pods’ 

(storage containers),” and there was “further documentation stored in F.B.I. offices.” Id. 

at *3. Moreover, the case involved “a singular, individual defendant, who is detained in 

jail pending trial, and who is represented by a relatively small defense team.” Id. at *7. 

The defendant had “little practical ability in the jail setting to be of much assistance in the 

search as he can do no document review, either hard copy or electronically, absent the 

physical presence of counsel in jail.” Id. at *7. The court contrasted the defendant’s 

situation with W.R. Grace, 401 F. Supp. 2d at 1080, where the district court refused to 

order the government to itemize Brady materials in part because “there were multiple 

defendants in that criminal case with some overlapping discovery needs, and [ ] the 

defendants were apparently not detained pending trial making their search for Brady

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materials much easier.” 2010 WL 3036444, at *6. 

Like W.R. Grace and unlike Salyer, there are multiple defendants in this case, none 

of whom are in detention. Moreover, in contrast to Salyer’s “small defense team,” the six 

Defendants who filed or joined the instant motion are represented by at least six different 

law firms. See CR 273-1 at 2. Courts have cited multiple defendants with mutually aligned 

interests as a factor in refusing to order the government to identify material favorable to 

the defense in produced discovery. See AU Optronics, 2011 WL 6778520 at *2; 

Rubin/Chambers, 825 F. Supp. 2d at 456; W.R. Grace, 401 F. Supp. 2d at 1081. Perhaps 

most importantly, Salyer predates the nationwide ESI Protocols – and, as discussed above, 

the government has complied with the ESI Protocols here. 

United States v. Cutting, 2017 WL 132403 (N.D. Cal. Jan. 12, 2017), likewise could 

not be more different. Unlike here, the defendant in Cutting filed a declaration from an ediscovery vendor averring that the government’s ESI production “suffer[ed] from a number 

of technical issues which materially degrade [defense counsel’s] ability to search and 

review that discovery.” Id. at *5. The declaration itemized numerous categories of 

problems with the production, and the government provided no rebuttal. Id. at *6. 

Moreover, the government’s representations regarding the completeness of its earlier 

productions were incorrect, and the government later produced an additional 23 boxes of 

materials, including the defendant’s own emails. Id. at *10. “Under all of these 

circumstances,” the court ordered the government to identify the Brady/Giglio material in 

the produced discovery. Id. The record here is devoid of any of these factors. 

In United States v. Blankenship, 2015 WL 3687864 (S.D.W.Va. June 12, 2015), the 

sole defendant alleged the government provided a “massive,” “unorganized” and 

“jumbled” production of four million pages of documents five months before trial. Id. at 

*3, *5. There was no indication the government had taken any steps to facilitate the 

defendant’s review by, for example, producing “hot documents” or indices. Id. at *6. 

Although the court continued the trial date, it found that the nature of the production 

justified an order requiring the government to designate Brady material in the produced 

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documents. Id. at *7. Unlike in Blankenship, the government here provided precisely the 

kind of assistance that Blankenship lacked, including organized e-discovery productions, 

“hot document” disclosures and detailed indices. Where – as here – the government has 

provided electronically-searchable discovery and taken additional steps to facilitate the 

defendants’ review, Brady itemization is not required.

III. DEFENDANTS’ REMAINING ASSERTIONS LACK MERIT.

Defendants assert that, among their numerous law firms, only Davis Wright 

Tremaine, LLP (DWT) has Relativity – and even that firm lacks “sufficient infrastructure” 

to handle “the Backpage-related materials.” CR 273 at 3 and n.1. Defendants then assert 

that the government’s motion to disqualify DWT could “eliminate what access and hosting 

capabilities [Defendants] currently have for use of Relativity.” CR 273 at 3. Defendants’

suggestion that they wish to involve DWT in fact discovery appears at odds with their 

representations, in response to the disqualification motion, about the scope of DWT’s 

involvement in this case. Cf. CR 180 at 9 (“DWT’s role will be (as it has been) to address 

issues concerning the First Amendment, free speech and protections for Internet providers 

and users, and not as trial counsel.”).

Defendants assert the cost of setting up and using Relativity would approach 

$800,000 from now until the trial date. CR 273 at 3 and n.1. However, Defendants’ motion 

is devoid of any cost estimates from any identified e-discovery vendor, and the motion

does not discuss if Defendants obtained multiple estimates. Moreover, Defendants do not 

suggest any alternatives to the industry-standard Relativity format used by the government 

– the format Defendants initially accepted. See ESI Protocol, Recommendations at 1 (“the 

producing party should produce its ESI discovery materials in industry standard formats” 

and “is not obligated to undertake additional processing desired by the receiving party that 

is not part of the producing party’s own case preparation or discovery production”). 

Defendants must either incur necessary e-discovery expenses on their own, or apply for 

assistance through the Criminal Justice Act. 18 U.S.C. § 3006A(e)(1). See, e.g., Criminal 

E-Discovery: A Pocket Guide for Judges at 6 n.15 (Federal Judicial Center 2015), available 

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at https://www.fjc.gov/sites/default/files/2016/Criminal%20e-Discovery.pdf (“The [CJA]

can authorize payment of e-discovery review costs...regardless of whether a defendant can 

otherwise afford retained counsel. 18 U.S.C. § 3006A(e)(1) allows retained counsel to 

apply for services to be paid through the CJA system.”). Given the pervasiveness of ediscovery in modern litigation, and particularly in a case involving possibly the largest 

prostitution-related website ever known to the Internet, Defendants cannot shirk their 

obligation to participate in e-discovery based on unsupported assertions about the cost of 

review. 

CONCLUSION

For the foregoing reasons, the Motion for Itemization of Brady/Giglio Material (CR 

273) should be denied. 

Respectfully submitted this 4th day of September, 2018.

ELIZABETH A. STRANGE

First Assistant United States Attorney District of Arizona

/s Peter S. Kozinets

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

JOHN J. KUCERA

Assistant U.S. Attorneys

BRIAN BENCZKOWSKI 

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

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Certificate of Service

I hereby certify that on this date, I electronically transmitted the attached document 

to the Clerk’s Office using the CM/ECF system for filing and transmittal of a Notice of 

Electronic Filing to the following CM/ECF registrants: Anne Chapman, Erin McCampbell, 

Gregory Zamora, James Grant, Larry Debus, Lawrence Kazan, Lee Stein, Paul Cambria, 

Robert Corn-Revere, Ronald London, Janey Henze Cook, John Littrell, Kenneth Miller, 

Thomas Bienart, Jr., Bruce Feder, Michael Kimerer, Rhonda Neff, KC Maxwell, David 

Wakukawa, Michael Piccarreta, Stephen Weiss. 

s/ Melody A. Karmgard

U.S. Attorney’s Office

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