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United States v. Malik

United States District Court, D. Kansas

September 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
AFAQ AHMED MALIK, Defendant.

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge.

         In its September 7, 2017 Memorandum and Order (ECF No. 130) (the “Order”), the Court granted Malik's Motion to Compel Discovery Response and ordered the Government to: (1) serve its supplemental response to Malik's Request No. 5; (2) produce unredacted copies of the five February 2016 emails listed on the Government's June 22, 2017 privilege log; and (3) produce all documents and ESI responsive to Request No. 5. Malik's related request for sanctions and Motion for Leave to Conduct Supplemental Discovery (ECF No. 116) were taken under advisement pending the Government's production of the discovery ordered. The Court indicated in the Order that the Government's supplemental response and document production would be taken into consideration in the Court's decisions regarding whether and, if so to what extent, to award sanctions and/or to allow supplemental discovery.

         On September 13, 2017, pursuant to the Order, the Government served its supplemental response and produced the five unredacted emails, as well as fifty-seven pages of emails and other documents responsive to Malik's Request No. 5.

         I. REQUEST FOR SANCTIONS

         The Court has reviewed the Government's supplemental response and documents produced on September 13, 2017. The emails and documents produced are clearly responsive to Request No. 5, as they are associated with the Government's investigation into Malik's Pakistani divorce documents. The emails were sent between February 2016 and the close of the investigation in September 2016. The Government's production confirms the Court's prior finding that the Government failed to timely supplement its response to Malik's Request No. 5 with these responsive emails and documents, and/or a privilege log identifying them. Indeed, the Government did not produce or identify these responsive documents on a privilege log either in its supplemental production on June 22, 2017, or at any other time, until September 13, 2017, when the Court ordered it to do so.

         Malik's motion does not indicate what specific sanctions he seeks for the Government's discovery violations. Federal Rule of Civil Procedure 37 includes a number of sanctions the Court may impose for discovery violations. Rule 37(c)(1)(C) specifically addresses sanctions based upon a party's failure to disclose or supplement under Rule 26(a) or (e) and permits the court to order payment of reasonable expenses, inform the jury of the party's failure, or impose “other appropriate sanctions, ” including those listed in Rule 37(b)(2)(A)(i)-(vii) for disobeying a discovery order. Under the particular circumstances of this case, the Court concludes an appropriate sanction is provided by Fed.R.Civ.P. 37(b)(2)(A)(ii), which gives the Court the authority to prohibit a disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence.

         This sanction is appropriate here because the Court has found the Government failed to timely supplement its production of documents responsive to Request No. 5. Emails produced for the first time on September 13, 2017, pursuant to the Order, show the Government received an undated report (the “Undated Interim Report”) on its investigation into Malik's Pakistani divorce on September 9, 2016, in anticipation of the September 16, 2016 Pretrial Conference. The recently produced emails also show the Government requested the investigation be closed on September 26, 2016. Yet, the Government never voluntarily produced a copy of the Undated Interim Report in discovery, and waited until November 30, 2016, more than two months after the Pretrial Conference and more than three months after the close of discovery, to produce the Interim Report.[1] The main differences between the Interim Report and the Undated Interim Report are that the Interim Report contains a September 20, 2016 “Date Approved, ” a November 18, 2016 time stamp, and is on Department of Homeland Security letterhead stationery. The Government did not produce the Final Report, [2] which has an October 24, 2016 “Date Approved” and shows the investigation closed, until May 25, 2017.

         Because of the Government's untimely production of both versions of the Interim Reports and the Final Report to Malik, the Court concludes that an appropriate sanction is to prohibit the Government from presenting at trial the Interim Reports (undated and dated versions) and Final Report of the investigation, as well as information contained in those reports that is not independently available from other documents or evidence that the trial court determines admissible at trial. This ruling is not intended to preclude Malik, if he chooses to do so, from presenting the Interim Report and Final Report, or the contents thereof, as evidence at trial to the extent they are otherwise admissible.

         The Court further awards Malik his reasonable expenses, including attorney's fees, incurred in filing his Motion to Compel Discovery Response (ECF No. 113), which the Court granted. Under Fed.R.Civ.P. 37(a)(5)(A), if a motion to compel is granted, the court:

must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.

         On or before September 22, 2017, Malik's counsel shall file an affidavit setting out the reasonable expenses, including attorney's fees, incurred in filing Malik's Motion to Compel Discovery Response under Fed.R.Civ.P. 37(a)(5)(A), along with documentation supporting the requested amount of reasonable expenses. The Government shall have until seven (7) days afterthe filing of the affidavit to file ...


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