02-10-22 - NOTICE Memorandum Regarding Status of Discovery by USA as to JOHN EARLE SULLIVAN.txt

 
 UNITED STATES DISTRICT COURT  
 FOR THE DISTRICT OF COLUMBIA 
 
UNITED STATES OF AMERICA   : 
:  CRIMINAL NO. 1:21 -cr-00078- EGS  
v.    : 
:  
JOHN EARLE SULLIVAN    :  
:      
Defendant.   : 
 
UNITED STATES’ MEMORANDUM  
REGARDING STATUS OF DISCOVERY AS OF FEBRUARY 9, 202 2 
 
 The United States files this memorandum for the purpose of describing the status of 
implementation of our Capitol Siege1 global discovery plan, i.e., our  plan for producing or 
making accessible to all defense teams voluminous data collected by the government in relation 
to the Capitol Siege investigation, so they may identify information they deem relevant.2  Under 
 
1 The “Capitol Siege” refers to the events of January 6, 2021, when thousands of individuals 
entered the U.S. Capitol and U.S. Capitol grounds without authority, halting the Joint Session 
and the entire official proceeding of Congress for hours until the United States Capitol Police (“USCP”), the Metropolitan Police D epartment (“MPD”), and other law enforcement agencies 
from the city and surrounding region were able to clear the Capitol of rioters and to ensure the safety of elected officials.    
2 By way of illustration, the  data subject to the global discovery plan includes  items such as:  
1. Investigations into all allegations of officer misconduct arising out of January 6, 2021 (regardless of whether sustained);  
2. Thousands of hours of surveillance footage from the USCP, MPD, the U nited States 
Secret Service (“USSS”), and the Senate and House floors, and body- worn -camera 
(“BWC”) footage from multiple law enforcement agencies that responded on January 6, 2021;  
3. Radio transmissions for multiple law enforcement agencies that responded on January 6, 2021;  
4. Location history data for thousands of devices that connected to the Capitol’s cellular network infrastructure, or whose presence within the restricted perimeter was captured in records obtained from Google and multiple data aggregation  companies;  
5. Thousands of tips;  
6. Relevant materials from other subjects’ case files, including results of searches of digital devices, Stored Communications Act (“SCA”) accounts, and interviews of 
 Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 1 of 202 
 our global discovery plan , the data that  is being made accessible to all defendants far exceeds the 
information to which any defendant is entitled under Federal Rule of Criminal Procedure 16, the 
Jencks act, or our Brady  obligations.3  We are making such vast quantities of data  available due 
to the unique circumstances of this matter, i.e., literally hundreds of similar crimes being 
committed in the same place contemporaneously.  
This memorandum addresses the status of:  
1. Production of voluminous amounts of video to the  Federal Public Defender (“FPD”)  
instance of evidence.com (access available since October 18, 2021), and the multiple 
tools the government has provided to assist the def ense in locating footage they may 
consider relevant;   
2. The ability of inmates housed in the D.C. Department of Corrections (“DOC”) to 
access those same materials through a separate DOC instance of evidence.com 
(beginning as of February 4, 2022) ;  
3. Voluminous documents produced since our last  status  memorandum  dated November 
5, 2021;   
4. The ability of legal defense teams to obtain access to FPD’s  Relativity workspace 
(beginning as of January 21, 2022) , and the current contents of that database;  
5. Manner of production of voluminous documents in view of  defense counsel access to 
Relativity (beginning as of February 3, 2022);   
6. Plans for a n e-discovery room in the DOC;  
7. Access by inmates to laptops made available through the DOC’s e -discovery 
program;  
8. Access to voluminous discovery by pro se  defendants;  
9. Challenges we are overcoming ; and  
10. Our plan for certain  trials that may proceed before our discovery plan is substantially  
executed.  
 
*** 
  
 
other subjects, witnesses, tipsters and victims (redacted o f identifying information as 
appropriate); and  
7. All reports and exhibits related to allegations of officer misconduct or complicity on 
January 6, 2021.  
 
3 Brady v. Maryland, 373 U.S. 83 (1963)  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 2 of 203 
 1. Status of Production of Video Footage  to FPD  Instance of Evidence.com  
Since our last status memorandum describing the status of discovery (dated  November 5, 
2021) , the following video footage has been shared to the defense instance of evidence.com and 
is accessible to any Capitol Siege defense counsel who requests a license from FPD : 
1. 1,063 files consisting of approximately 714 hours of BWC footage recorded by 675 
MPD  officers.   
2. 104 files consisting of approximately 102 hours of  BWC  and pole  cam era footage 
recorded by approximately 54 Arlington County Police Department  (“ACPD”)  
officers  
 
At this juncture, just over  24,000 files  consisting of USCP  closed circuit video (“CCV”) 
footage , BWC  from multiple law enforcement agencies,  and USSS surveillance footage have 
been made available to the defense instance of ev idence.com.  For context, t he files provided via 
evidence.com  amount to over nine terabytes of information and  would take 102 days  to view .  
Accordingly, s olely to assist Capitol Siege defense teams  in identifying video files they  may 
consider relevant in specific cases, we have also produced the following analytical and mapping 
tools, all of which comprise  substantial  government work product:  
1. MPD Radio Global Positioning Satellite (“GPS”) Spreadsheet :  The Discovery Team 
learned th at radios provided to MPD officers by the D.C. Office of Unified 
Communications (“OUC”)  provide GPS location data when four or more satellites are 
visible to the radio.  Under these circumstances, the data is transmitted: (1) every ten 
minutes; (2) when there is an emergency activation on the radio; and (3) each time an  
officer pushes the button to talk over the radio. The Discovery Team obtained MPD radio GPS records for January 6, 2021 and created a spreadsheet of data that  may be 
plotted on a time -scaled  map using commercially available GPS mapping software.  
In many instances, the subscriber alias for a radio is an individual officer’s Computer Aided Dispatch (“CAD”) number and last name.  Since MPD BWC footage in 
evidence.com is  also frequently saved under an officer’s  CAD number and name , a 
particular officer’s radio location information  can be used to search for  BWC footage  
from the same time and location  in evidence.com ; 
 
2. BWC Summary Spreadsheet and related zone maps:  This 752- page spreadsheet was 
initially created by over sixty individuals as an investigative tool to assist prosecutors 
in locating relevant BWC footage from responding law enforcement agencies including MPD, Montgomery County Police Department, and Fairfax County Police Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 3 of 204 
 Department .  Wi th respect to  over 2,800 BWC video files, the spreadsheet provides: 
(1) the name and CAD number of the officer associated with the video, (2) the video 
start time, (3) a short summary of notable events observed by the reviewer including potential crimes observed and the time the camera appears to enter the Capitol, if any; and (4) the apparent location of the camera between noon and midnight, using 15-
minute periods of duration.  The locations identified correspond to zone maps that 
section the interior of the Capitol, the Lower West Terrace, and the Capitol Grounds 
into smaller areas ;   
 
3. USSS video spreadsheet :  The Discovery Team  created a spreadsheet containing the 
filenames/titles, starting times, video length, and date of USSS video ; 
 
4. 15 camera maps of the interior of Capitol Visitor’s Center and the interior of the Capitol , and one camera map of the Capitol grounds.  The maps depict the general 
location of the cameras that are identified by unique number in each USCP CCV video filename ;   
 
5. ACPD spreadsheet:  The Discovery Team created a spreadsheet listing start times of handheld camera video from Arlington County Police Department ; and  
 
6. A timeline of events drafted by the USCP , beginning December 16, 2020, 
memorializ ing critical events  occurring in advance of  and during the Capitol Siege.  
 
2. Status of Access to Evidence.com by  Defendants  Housed  in the D.C. Department of 
Corrections  
 
Through a n unprecedented  collaboration among the government, FPD, FPD’s National 
Litigation Support Team (“NLST”), American Prison Data Systems  (“APDS”) , the DOC,  and 
Axon Enterprise, Inc. (“Axon”), as of February 2, 2022, a separate, stand -alone instance of 
evidence.com has been made available to allow in -custody Capitol Siege defendants who are 
pending trial to view video footage.  This DOC instance of evidence.com is a mirror image of the 
FPD instance of evidence.com .  The government and FPD have drafted a  memorandum of 
understanding describing the contents of the DOC instance , the applicable technical settings,  and 
the requirements for inmates to obtain access .   In brief, the government will make a request for 
an inmate to gain access to  the DOC instance of  evidence.com once the assigned prosecutor Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 4 of 205 
 notifies the Capitol Siege Discovery Unit Chief that one of the following three things has 
occurred:  
1. The inmate has signed Attachment A to the protective order;  
2. The inmate has  stated on the record in court that s/ he has read the protective order, 
reviewed it with his/her attorney, understands the protective order, and agrees to 
abide by it; or  
3. (a) A defense attorney has represented to the assigned prosecutor in writing that they have reviewed the protective order w ith their client and have been authorized to sign 
Attachment A on their client’s behalf; and (b) the defense attorney also agrees that at 
the next scheduled hearing in which the client is present, s/he will put on the record that s/he signed Attachment A on the client’s behalf after reviewing the protective order with him or her.  
 
Based upon information provided by APDS, as of February 9, 2022, twenty  Capitol Siege 
inmates should have received access to evidence.com over their APDS educational tablets.
4  As 
of today, a ssigned prosecutors are still  waiting for  defense counsel who represent  an additional  
fifteen  Capitol Siege  defendants  to confirm their  respective client’s agreement to abide by the 
terms of the protective order.  
3. Status of Production of Documents  to Date   
 Global productions made  to defense counsel since November 5, 2021 ( Global Production 
Nos. 8 to  11) have continued to focus on materials most fre quently requested by defendants and 
include  items (in addition to some  of the tools  referenced  above)  such as : 
1. Two new USCP Office of Professional Responsibility  (“OPR”)  reports and 16 
associated exhibits ;  
2. Forty  additional exhibits to previously produced USCP OPR repor ts; 
3. One hundred sixty- two USCP Use of Force reports and exhibits ; 
4. A collection of MPD Use of Force reports and exhibits ; 
5. Sixty -five video  files  of the Capitol Siege  recorded by MPD’s  Electronic Surveillance 
Unit and six  related reports ; 
6. Ten video files of footage from the Senate floor from the Senate Recording Studio;  
7. Ten video files of footage from the House floor from the House Recording Studio;  
8. Sixty -four audio recordings of Virginia State Police radio communications ; 
 
4 Although APDS attempted to make the link accessible on February 4, there were technological 
issues.  As of February 9, we understand that those issues have been resolved. Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 5 of 206 
 9. Eight  audio files of USCP radio communications and conference bridge ; 
10. A redacted transcript of the USCP Dignitary Protection Detail radio channel ; 
11. 18,484 anonymous tips received by MPD ; 
12. Documents relevant the interstate commerce element of  charged offenses ; and  
13. USSS files related to Vice President Elect Kamala Harris and Vice President Michael 
Pence’s whereabouts on January 6, 2021.  
 
These materials are substantial .  For example, the exhibits to  USCP OPR  and MPD U se of F orce 
reports  described above include approximately 94 audio- recorded  interviews of officers and 
witnesses  (35 USCP OPR interviews and 59 MPD use of force interviews).   
4. Access to  FPD Relativity Workspac e 
On Friday, January 21, 2022, FPD circulated instructions to defense attorneys on how to 
gain access to the FPD Relativity workspace.  Capitol Siege defense attorneys were advised that 
since the Relativity database is in a FedRAMP,5 secure environment, completing the process  for 
obtaining access  is time -consuming for FPD  and its vendor .  Thus, counsel should expect  the 
process  for gaining access to the database to take  at least  four to five business days from when 
counsel  first submit s a Relativity License Request Form.   
5. Manner of Production Going Forward  
Approximately two weeks after Capitol Siege defense counsel were notified to apply for 
Relativity access,  and after providing ample notice to defense counsel, the Discovery Team 
began making its global productions directly to the defense Relativity workspace  and 
discontinue d the practice of making voluminous  productions via USAfx.6  Using a defense 
 
5 The Federal Risk and Authorization Management Program (FedRAMP) was established in  
2011 to provide a cost -effective, risk -based approach for the adoption and use of cloud services 
by the federal government. FedRAMP empowers agencies to use modern cloud technologies, 
with an emphasis on security and protection of federal information.  
 
6 We expect prosecutors will continue use USAfx to make productions in individual cases.  
 Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 6 of 207 
 Relativity workspace to receive materials produced by the government in discovery will have 
several benefits for defense teams, including but not limited to avoiding any challenges they  may 
have experienced  in downloading large productions from USAfx.7  They  will no longer need to 
download productions to review them, as the materials will already be available for review in the 
database.  Additional benefits will include the ability to perform keyword searches across the 
materials in the database, including searches of audio and video that has been “machine” 
transcribed.8  Also, within the database, materials that are linked to each other (e.g., a report and 
multiple exhibits), will be easily identified as connected to eac h other for reviewing purposes, 
even if the materials were not initially provided in the same discovery production.9  Notably, 
many of the materials we will be providing, such as  thousands of tips or the  results of searches of 
other defendants’ devices and SCA  accounts, would be of little value if produced in any other 
manner.  In addition to the fact that they would likely exceed the capacity of our file transfer 
system or defense downloading capabilitie s – and thus require an enormous number of storage 
devices to be provided in every single case  – there would be no way to search the contents 
universally. 
 
7 USAfx is merely a tool for file transfer using the Internet, while Relativity is an online search 
and review database.  USAfx is not an optimal nor in many cases even a workable manner of 
transferring extremely large volumes of data.  
 
8 Machine transcription is an imperfect tool that is intended to assist defense teams  in locating 
relevant information. On high- quality audio files (e.g., equivalent to a deposition or court 
hearing), machine -transcription is more accurate than on audio files that contain background 
noise or in which the speakers are not clearly enunciating (e.g., cell phone videos, custodial interviews, radio communications, voicemails).  
 
9 In e-discovery parlance, linked documents (such as a report and exhibits, or an email and 
attachments), are also known as a document “family.”  
 Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 7 of 208 
 Defendants will not be provided access to the FPD Relativity workspace , given the 
extensive volume of  highly sensitive materials  currently  therein  and those  that we will produce in 
the future .  Pursuant to the protective order issued in Capitol Siege cases, defense counsel may 
not permit defendant s to view such materials unsupervised by defense counsel or an attorney, 
investigator, paralegal, or support staff person employed by defense counsel .10  By way of 
illustration, highly sensitive materials currently in the database include allegations about officers’ 
use of force or complicity with rioters  (even if  ultimately not sustained ), and CCV camera maps 
of the Capitol and grounds containing information that , if further disclosed, could negatively  
impact the security of the U.S. Capitol.  In the future, such materials will grow to include  
relevant  materials derived from searches of subjects’ digital devices and social media accounts ; 
interviews with  defendants,  tipsters , witnesses , and victims ; background information 
accumulated about investigation subjects; and financial , communications, and travel records 
pertaining to investigation subjects that may  bear little or no relevance to most other defendants.  
Notably, such information may pertain to subject s who are not  currently and who may never be 
charged.     
 Of course, we  will continue to notify the defense of materials have been added to the 
FPD Relativity  workspace  so that counsel and defendants may collaborate to identify any 
materials a defendant should review in a particular case.  Subject to the protective order, defense 
counsel can share such documents with  their respective clients through a variety of mechanisms 
 
10 The protective order places the burden of demonstrating need for protection on the 
government, and it gives the assigned prosecutor ample flexibility to negotiate sensitivity 
designations and redactions with respect to individual document s in specific cases.  It further 
permits defendants to contest any sensitivity designation when no agreement may be reached.  
  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 8 of 209 
 including Internet -based file transfer systems or traditional storage devices, such as hard drives, 
flash drives, and discs.11   
At this juncture, the defense Relativity workspace contains Global Productions 8 to 11, 
and portions of Global Production No. 2 (all of which were already made accessible to defense 
teams via USAfx ).  We are in the process of transferring Global Production Nos. 1 through 7 to 
the defense Relativity workspace and anticipate that process will be completed this week.   
Among the materials the government expects to provide in the near future  are: 
1. The remainder of discoverable documents we received from the USCP and MPD in 
response to requests by the Discovery Team.12 
 
2. Over 900 records pertaining to Federal Bureau of Investigation (“FBI”) interviews of 
law enforcement officers.  These records are currently being redacted to remove information such as officer’s personal telephone numbers ;  
 
3. Search warrant documents  related to the FBI’s collection  of: (a) cell tower data  from 
Verizon, AT&T, and T -Mobile/Sprint ; (b) Google account subscriber information and 
 
11 FPD and i ts vendor are also attempting to determine if it will be possible for  defendants to 
view selected materials within the Relativity workspace, utilizing permissions that would ensure the selected materials are viewable only by the relevant client.   
 
12 We have nearly completed our assessment and review of approximately 56,000 records 
provided by the USCP and MPD.  Discoverable documents from both data sets continue to be turned over to the defense on a rolling basis. Those discoverable materials not yet  produced will 
be shared to the FPD Relativity workspace as soon as the on- going review and redaction process 
is completed.  
 Of approximately 22,000 MPD records we received, we determined that approximately 19,300 were unique (not duplicates) and needed review. Of those , approximately 18,200 have been 
reviewed and deemed discoverable – they are now in the redaction process.  There are still approximately 1,000 MPD records undergoing review. The remainder have been deemed not discoverable.  
 Of approximately 34,000 USCP records we received, we removed a large number of files from the review process because: (1) they consisted of unscoped digital devices or social media accounts, or (2) they were duplicative.  At this juncture, of the remaining approximately 13,200 documents, approximately 3,000 documents are still undergoing review, and approximately 4,200 are in the process of being redacted.  
 Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 9 of 2010 
 location data  from the Capitol and restricted perimeter , i.e., the Google geofence 
warrants;  (c) anonymized location data collected by ten data aggregation companies ; 
and (d) basic subscriber information for Facebook/Instagram accounts linked to the 
anonymized advertising identifiers obtained pursuant to the data aggregation 
warrants.  These materials are currently being redacted to remove law enforcement 
sensitive infor mation, for example, the precise location of cellular network 
infrastructure  that provide d cellular service to the Capitol on January 6, 2021;  
 
4. Archived Parler13 posts and comments from around the period of January 6, 2021, 
hosted by the Internet Archive Project  and retrieved by the FBI ; and  
 5. Videos scraped from Parler that were deemed potentially relevant to the Capitol Siege after the FBI’s  review of thousands of  videos from a two- week period encompassing 
January 6, 2021.  
  Finally, we currently have a surge team reviewing for discoverability and sensitivity an 
additional 26,000 FBI documents that were previously loaded into our Relativity  database.  
Relevant documents will be provided after appropriate redactions are completed . 
6. Status of Access to Documents in Defense Team Relativity  Workspace  by Inmates  
Housed  in the D.C. Depart ment of Corrections  
 
We continue to collaborate with FPD and DOC with respect to the creation of  an e-
discovery room in the Correctional Treatment Facility in which Capitol Siege defendants  can 
access materials pro vided to them by counsel from the defense team  Relativity  workspace .  The 
government and FPD’s vendors have worked together to establish a plan for production options 
 
13 Parler is social media website  that was  used by some individuals to coor dinate in advance of 
the Capitol Siege. See, e.g., Timberg, Craig and Harwell, Drew, “ Pro-Trump f orums e rupt with 
violent t hreats ahead of Wednesday’s r ally against the 2020 e lection , The Washington Post, (Jan. 
5, 2021), https://www.washingtonpost.com/technology/2021/01/05/parler -telegram -violence- dc-
protests/ ; Frenkel, Sheera , The Storming of Capitol Hill was O rganized on S ocial M edia, The 
N.Y. Times , (Jan. 6, 2021), https://www.nytimes.com/2021/01/06/us/politics/protesters -storm -
capitol -hill-building.html . Parler went offline on January 10, 2021, when Amazon Web Services 
canceled its hosting services.  See Room, Tony and Lerman, Rachel, “ Amazon suspends Parler, 
taking pro- Trump site offline indefinitely , The Washington Post, (Jan. 11, 2021), 
https://www.washingtonpost.com/technology/2021/01/09/amazon- parler -suspension/ . Concerned  
that Parler was going to be taken offline, the government attempted to collect and preserve publicly available Parler posts, comments , and videos  through a variety of  methods .  
   Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 10 of 2011 
 and formats for detained defendants .  Broadly , the options under consideration would allow 
counsel to share productions to detained defendants in one of two ways:  
1. An HTML production format that would provide a “CSV”14 file with metadata fields 
and links to the documents for review . The CSV  file would also contain a column in 
which inmates could make notes about individual documents  and send them back to 
counsel for review.  The CSV  would be delivered to inmates  on a storage device or 
via a file transfer program.  
 
2. Productions could be viewed within the Relativity workspace  in the manner being 
considered per  footnote 11 . 
 
Fifteen laptop computers that FPD ordered to support the proposed program are in transit to 
FPD.  The government, FPD and DOC have made significant progress on a memorandum of 
understanding that will govern each party’s duties and responsibilities in relation to such a 
program.   
The implementation of this solution has met with some delays recently, in part due to the 
need to identify individuals who would be willing to staff the room.  Under the agreement in 
principle, FPD will be responsible for providing necessary staffing of an  e-discovery room .  At a 
bare minimum, staff will be responsible for assigning computers for review and ensuring defendants are able to access the relevant programs.
15  Finding staff with the requisite computer 
skills who are willing to work full -time in a  correctional setting is challenging, and that  challenge 
is further exacerbated by the existence of the COVID -19 pandemic.  In any event, even if staff 
were currently  available,  it is questionable whether the program could have  been made accessible 
 
14 A CSV (comma -separated values) file is a text file that has a specific format which allows data 
to be saved in a table structured format.  It can be opened in a wide variety of programs and  is 
commonly opened in Microsoft Excel and appears as a spreadsheet.  
 
15 Ideally, such staff would be able to provide additional support including troubleshooting issues 
with computers and assistance with accessing and reviewing productions. 
 Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 11 of 2012 
 to larg e groups of inmates  in recent months .  Pursuant to medical stay -in-place protocols issued  
December 22, 2021, the  DOC has suspended all in- person small group activities  and volunteer 
services in the effort to combat the spread of COVID -19.16   
7. Status of Access to Laptops Through DOC’s E -Discovery Program  
In the interim, the DOC’s e -discovery laptop program has presented inmates with a 
reasonable alternative for viewing voluminous documentation.  As described in our prior 
submissions, there are over 20 com puters in the DOC’s e -discovery program, and inmates may 
keep them for up to two weeks at a time once they are eligible.  Based on the most recent version of the laptop waitlist (dated February 4, 2022), it appears there are approximately 18 -22 inmates  
on the waitlist, and 14 of them were added  no earlier than  January 21, 2022.    
8. Pro Se  Defendants  
 The government and FPD continue to collaborate about a discovery plan for pro se 
defendants.  Currently, s ubject to the terms of the protective order, standby counsel  can use their 
own license s for the FPD instance of evidence.com to  share videos with non- detained  pro se 
defendants , and detained pro se defendants can view video in the DOC instance .  As we have 
previously made defense counsel aware, we ha ve agreed to waive the requirement that a 
defendant be  supervised while reviewing highly s ensitive video in cases where access  is 
provided through evidence.com  and:  
1. A protective order has been entered in the relevant case;  
2. The defendant has executed the written acknowledgement to the protective order (or  
been subject to an equivalent admonishment by the Court) ; and  
3. The ability of the defendant to download or reshare is  suppressed by counsel before  
the video is shared to the defendant . 
 
 
16 We understand that the DOC imminently intends to revert to the modified stay -in-place 
protocols that w ere in effect prior to December 22, 2021. Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 12 of 2013 
 For the reasons elaborated  in part 5 above, the government will not agree to providing 
pro se  defendants  unfettered  access to FPD’s Relativity workspace.  However , prosecutors 
assigned to pro se case will share production indexes with both defendants and their standby 
counsel .  Standby counsel should discuss the materials on the production index with the  pro se 
defendant , and subject to the protective order, s/he  can share any materials requested utilizing the 
same mechanisms available to represented defendants described above.  Further, i n those 
instances  where a pro se  defendant wishes to view highly sensitive documents, standby counsel 
or his/her staff must supervise the defendant unless: (1) the defendant  and the assigned 
prosecutor are able to reach a suitable compromise  or (2) the Court orders otherwise.   
9. Challenge s We Are Overcoming  
In November, we projected that by the end of January 2022, we would provide the 
discoverable portions of several hundred thousand FBI records.  We were unable to meet this goal for several reasons.  Our plan was to identify a ll data in the FBI’s case management  system 
associated with any Capitol Siege  investigation subject , and then export that data for review  in 
Relativity ( after culling it of any material arguably protected by Federal Rule of Criminal 
Procedure 6(e) ).  Our request to e xtract this volume of data from  the FBI’s case management  
system  was unprecedented.  A n FBI data scientist worked closely with the developers of the 
FBI’s case management system to create a technological solution that would identify the relevant case materials and export the data  for uploading to Relativity.  In  November 2021, we 
understood that the technological solution had been suc cessfully deployed, and we expected to 
receive over 400,000 documents for further discovery processing at about that time.   Upon subsequent review of the export, however, our technology experts recognized that the solution developed was not as successful as originally believed.  Although the materials were identified Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 13 of 2014 
 and exported, they were no longer organized in any logical fashion, i.e., by individual 
investigation and in chronological order.  As a result, the government was r equired to develop 
additiona l technological solutions to ensure that documents were associated to appropriate case 
files and properly sequenced before they were loaded to Relativity .  This was an iterative process 
that took time.  Efforts to move quickly were also frustrated by COVID -related quarantines  and 
snowstorms that limited access  of key personnel  to the technology labs necessary to complete 
their work.  As a result of all the above, this entire process took far longer than was originally anticipated.    
Ultimately, approximately 380,000 documents from the FBI’s case management system  
were delivered to Deloitte on February 7, 2022.
17  Given the volume of material, it may take up 
to ten days for it to finish being uploaded.  Once the se materials  complete uploading, they  will 
require in -depth analysis and customization so that they may be produced to the FPD database in 
a standardized for mat, vastly facilitating future searching and review  by defense teams .  This 
process is required prior to any human review and is expected to take an additional several 
weeks.  During this same period, we will also leverage Relativity’s  analytical  tools to deduplicate  
files, potentially eliminating thousands of documents from the need for any further review .  (A 
highly preliminary review suggests that approximately one -third to one -half of the documents 
may be duplicative in nature .)  During this time, w e also expect to identify certain types of 
documents that may be “bulk- coded” as for production without the need for  additional  human 
 
17 An additional 50,000 documents that were contained in results of searches for materials 
potentially protected by Rule 6(e) will be separately delivered directly to the government for 
review.  Based on recent experience, our search terms were intentionally designed to be  
overinclusive and we expect that a sizeable portion of these materials will be sent to  our 
Relativity database.  
     Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 14 of 2015 
 review.  Once the remaining  materials are ready for human review, we have a surge staffing plan 
in place to perform  review  and redact ions, and to quality -check proposed productions.18 
Another challenge we continue to confront  is our plan to provide  defense teams the 
ability to view materials scoped from other subjects’ devices and SCA accounts, as well as law -
enforcement recorded interviews  of other investigation subjects .  As of today, we have provided 
over 900 items in these categories to Deloitte  for ingestion into the government’s Relativity 
database.  Processing and loading these materials is complicated because there are  no cookie -
cutter solution s that may be applied to all  devices and  interview s. There is a wide variability in 
the format of results obtained from searches o f digital devices and  SCA account s.  Similarly, 
subject interviews were recorded in proprietary player formats unique to the recording devices 
used.  All this data  require s thoughtful examination and decision- making to ensure it will be 
accessible, organized, and searchable  once it is loaded to FPD’s Relativity database .  In addition, 
we are providing assigned prosecutors a short timeframe to verify there are no security  concerns 
with the production of such items  to a global database .  At this juncture, a lmost 300 such  items 
have been uploaded to the government’s  Relativity  database, and we expect to begin providing 
them to FPD ’s Relativity  database shortly.  We are continuing to process and upload such items 
on a rolling basis.   
10. Short -Term Discovery Plan for Certain Trials  
The events of January 6 were historic, not only because they represented the first time 
that American citizens had stormed the  Capitol, but because  the amount  of information and 
 
18 The extracted FBI case files discussed above represent the FBI’s Capitol Siege case files as of 
approximately September 2021.  The lessons learned from this first extraction have led to 
significant improvements in the overall process.  We will begin t he next extraction after we 
complete application of the technological solution to the 50,000 documents that were contained in results of searches for materials potentially protected by Rule 6(e).  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 15 of 2016 
 evidence involved is unprecedented.  As d efendants are in a better position to determine what 
evidence they believe is exculpatory and will help in their defense, we maintain that our plan – to 
provide the defense with all data that may contain such information, but in a m anner that will 
facilitate search, retrieval, sorting, and management of that information  – continues to be 
reasonable and appropriate .19  Notwithstanding the challenges arising from organizing and 
 
19 The government’s approach is also consistent with the Recommendations for Electronically 
Stored Information (ESI) Discovery Production developed by the Department of Justice and 
Administrative Office of the U.S. Courts Joint Working Group on Electronic Technology in the Criminal Justice System.  See https://www.j ustice.gov/archives/dag/page/file/913236/download.   
It is also the generally accepted approach for ensuring that arguably exculpatory materials are provided in cases involving voluminous information.  Notably, every circuit to address the issue has concluded that, 
where the government has 
provided discovery in a useable format, and absent bad faith such as padding the file with 
extraneous materials or purposefully hiding exculpatory material within voluminous 
materials, the government has satisfied its obligations under Brady v. Maryland, 373 U.S. 83 
(1963) and progeny.   See United  States  v. Yi, 791 F. App’x 437, 438 (4th Cir. 2020)  (“We reject  
as without  merit Yi’s  argument  that fulfillment of  the Government’s  obligation 
under  Brady  requires  it to identify  exculpatory material.”);  United States v. Tang Yuk , 885 F.3d 
57, 86 (2d Cir. 2018) (noting that the “ government’s duty to disclose generally does not include a 
duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence”) 
(internal citations omitted); United States v. Stanford, 805 F.3d 557, 572 (5th Cir. 2015) (“ We 
have previously rejected such ‘open file’ Brady  claims where the government provided the 
defense with an electronic and searchable database of records, absent some showing that the government acted in bad faith or used the file to obscure exculpatory material.” ); United States v. 
Gray , 648 F.3d 562, 567 (7th Cir. 2011) (“The government is not obliged to sift fastidiously 
through millions of pages (whether paper or electronic). . . [and] is under no duty to direct a 
defendant to exculpatory evidence [of which it is unaware] within a larger mass of disclosed 
evidence.”) (quotation marks and citations omitted); Rhoades v. Henry , 638 F.3d 1027, 1039 (9th 
Cir. 2011) (rejecting Brady claim on the ground that the defendant “points to no authority 
requiring the prosecuti on to single out a particular segment of a videotape, and we decline to 
impose one”); United States v. Warshak, 631 F.3d 266, 297 (6th Cir. 2010) (“ As a general rule, 
the government is under no duty to direct a defendant to exculpatory evidence within a la rger 
mass of disclosed evidence”); United States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009)(same), aff’d in part, vacated in part, remanded, 561 U.S. 358 (2010); United States v. Pelullo , 399 F.3d 
197, 212 (3d Cir. 2005) (“ Brady  and its progeny . . . i mpose 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. Jordan, 316 F.3d 1215, 1253- 54 (11th Cir. 
2003) (concluding that the defendant’s demand that the government “identify all of the Brady and Giglio material in its possession,” “went far beyond” what the law requires).  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 16 of 2017 
 producing unprecedented amounts of data that are frequentl y complex in nature, our plan is 
being executed promptly and in good faith.  We have produced terabytes of organized and 
searchable data in hundreds of cases and continue to do so as quickly as possible .   
In addition, we have developed a short -term discov ery plan that will enable  certain trials 
to proceed before our discovery plan is substantially executed.  To be clear, this is not the plan we recommend, nor one that would be workable in multiple cases or complex cases.  Time spent executing this plan will reduce resources available to execute the global plan described above.  Pursuant to our short -term plan, we will create lists describing substantially all our holdings .  
Defense teams  can review  the lists  to request specific items  they believe may be relevant .  We 
expect these lists  will identify the physical  and digital  evidence that has been accumulated across 
all Capitol Siege investigations ; and c ategories of potentially discoverable information  from 
materials that are in our possession but have not yet been produced in global discovery, e.g., the FBI materials recently provided to Deloitte; small amounts of material from other law 
enforcement agencies that played a role on the Janu ary 6, 2021;  damage estimates from the 
Architect of the Capitol; and grand jury transcripts.
20 
In addition, pursuant to this plan, assigned prosecutors will ensure that searches  based on 
the defendant’s personal and/or device  identifiers , as relevant,  have been or will be conducted 
within of the following sets of data , as appropriate : 
 
20 If additional materials requested by defense teams are extensive, we will likely need to request 
a continuance and tol ling of the Speedy Trial Act to allow the defense adequate time to prepare 
for trial.  This is especially true in the case of requests for the results of multiple other subjects’ 
digital devices and SCA accounts that have not yet been scoped for relevant i nformation.  
Further, if the requested materials have not been loaded and organized within our Relativity database yet, they will be turned over in their native format and the defendant will be unable to leverage FPD’s Relativity’s search tools to review t hem.  
 Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 17 of 2018 
 1. Cell tower data from Verizon, AT&T, and T -Mobile/Sprint Cell for devices that 
connected to the Capitol’s cellular network infrastructure;  
 
2. Google account subscr iber information and location data from the Capitol and 
restricted perimeter  obtained pursuant to the Google geofence warrants;  
 
3. Location data obtained by the FBI from multiple  data aggregation companies ; 
 
4. Basic subscriber information and  call records  obtained pursuant to applications made 
to twelve cell service providers under 18 U.S.C. 2703(d) for devices  that, according 
to location data obtained pursuant to the Google geofence warrants , were present 
within the U.S. Capitol on January 6, 2021;  
 
5. A repository of Archived Parler posts and comments from around the period of 
January 6, 2021, hosted by the Internet Archive Proj ect and retrieved by the FBI ;21  
 
6. A repository of digital media tips maintained by the FBI ; and  
 7. The government’s discovery databases .  
 
We will also  perform  searches of the data described above in response to defense counsel  
requests for materials that we are obligated to produce under  Federal Rule Criminal Procedure 
16, the Jencks Act, and our Brady obligations.
22   
Further, prosecutors  will ensure that a facial recognition search has been performed 
within a repository of images and video that the FBI continually populates , so that all identifiable 
images of the defendant within that repository a t a time close to trial are produced .   
 
21 Items 1 -4 will never be provided en masse  in global discovery because they contain highly 
sensitive personal identifying information for members of Congress, their staff, and law enforcement who were all lawfully present on January 6, 2021, and the process of locating that information and eliminating it from these results continues even today.  
 
22 We will not perform searches for materials that are not required pursuant to the above -
described obligations.  We advise defendants who wish to perform wider -ranging searches to 
wait for the substantial completion of our global discovery plan.  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 18 of 2019 
 Finally, prosecutors  will confirm that FBI case agents conduct searches of FBI databases 
before trial, to ensure that all relevant documents concerning a specific case or any witnesses 
have been identified and produced.  
Conclusio n 
The government has taken it s Capitol Siege discovery obligations seriously from the 
inception of this investigation and has made substantial efforts to produce vast quantities of 
information that is varied and frequently complex in nature in hundreds of cases.  These efforts have in cluded:  
• Appointing a Capitol Siege Discovery Coordinator in January 2021;  
• Assembling a Capitol Siege Discovery Team consisting of experienced attorneys, 
project managers, and litigation technology professionals;  
• Collecting information from multiple sources involved in the response to and investigation of the Capitol Siege;  
• Collaborating with FPD to develop a standard protective order for Capitol Siege 
cases;  
• Identifying database solutions for making terabytes of video and documents 
accessible to hundreds of defendants;  
• Funding defense databases and obtaining licenses for all Ca pitol Siege defense 
counsel, and collaborating with FPD to execute these solutions;  
• Reviewing specific discovery requests by defense counsel to ensure the appropriate 
materials are prioritized for production;  
• Creating protocols and procedures to ensure that (a) case -specific discovery is 
provided, (b) defendants will receive complete copies of their own unscoped devices and SCA accounts upon request; (c) devices and SCA accounts are systematically filtered for attorney -client communications; (d) relevant s coped  digital data and 
custodial interviews will be uploaded to the government’s discovery databases for production to all;  and (e) increasing access to discovery by detained defendants. 
   
  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 19 of 2020 
  
We have now made substantial progress in our  effort to provide the defense appropriate  
discovery review platforms for both documents and digital media, to populate those platforms, 
and to use alternative means to provide the most relevant discovery without delay.  W e will 
diligently continue to transfer data to our vendor s, process it for production, and make 
productions  as expeditiously as possible .  As we continue to implement our plan, we will 
continue to file status memoranda with the Court on a regular basis.  
Respectfully submitted,  
MATTHEW M. G RAVES  
United States Attorney  
DC Bar No. 481052  
 
 
 
By:           /s/  Emily A. Miller    
Chief, C apitol Siege Discovery Unit  
DC Bar No. 462077  
555 Fourth Street, N.W., Room 5826 
Washington, DC 20530 Emily.Miller2@usdoj.gov (202) 252- 6988   
By:          /s/ Candice C. Wong   
 CANDICE C. WONG  
Assistant Unite d States Attorney  
DC Bar No. 990903  
555 Fourth Street, N.W., Room 4816 Washington, DC 20530 Candice.Wong@usdoj.gov 
(202) 252 -7849  
  
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