2020 Investigative Summary 8

INVESTIGATION OF ALLEGED FAILURE TO TIMELY PROVIDE DISCOVERY, FAILURE TO TIMELY MAKE EXPERT WITNESS DISCLOSURES, AND MISSTATEMENT TO THE COURT

An Assistant U.S. Attorney (AUSA) self-reported to OPR that a court was critical of the AUSA’s handling of discovery and expert witness disclosures and had excluded the testimony of one expert witness and limited the testimony of another expert witness because the government failed to timely provide the defense with its expert witness disclosures.

Based on its investigation, OPR concluded that the AUSA did not commit professional misconduct when (1) the defendant’s medical records were not timely produced to the defense because the AUSA reasonably believed that the records had been produced and because there was an error in electronically transmitting the records from the agent to the AUSA using a new system for exporting documents; (2) the government failed to timely make its expert witness disclosures, because the AUSA’s interpretation of the court’s orders and Rule 16 of the Federal Rules of Criminal Procedure regarding disclosures, while different from the court’s perspective, was not unreasonable under the circumstances and did not constitute bad faith; (3) the government failed to timely produce a forensic examination report to the defense because the AUSA had not yet received the report from the agent; (4) the government failed to timely produce another report to the defense because the AUSA had not yet received the report and, when the AUSA did receive it, mistakenly believed that it had been produced to the defense; and (5) the AUSA made remarks to the court at a hearing that were not completely accurate and were abbreviated regarding when the government received a report and produced it to the defense, but were not made with the intent to mislead the court.  Rather, the AUSA made mistakes in the handling of those items of discovery and in the remarks to the court.