No. 08 Cr. 0366(RLC)
United States District Court, S.D. New York
November 24, 2008
Deirdre Ann McEvoy, Joshua Aaron Goldberg, Esquires, United States Attorney's Office Southern District of New York, Assistant United States Attorney, New York, NY, for U.S.
David Matthew Fragale, Esq., Steptoe & Johnson LLP (DC), for the Defendant.
Evan T. Barr, Esq., Steptoe & Johnson, LLP, New York, NY, for the Defendant.
Sandra Elaine Cavazos, Esq., Steptoe & Johnson, LLP, New York, NY, for the Defendant.
*1 Defendant, James J. Treacy, moves for an order to compel the government to take custody of certain electronic documents that are currently in the possession of a cooperating witness, and to review such materials according to its obligations under Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U .S. 83 (1963).
From 1998 until 2001, Treacy served as Chief Operating Officer and Executive Vice–President of Monster Worldwide Inc. (“Monster” or “company”), a company that provided a broad range of online recruitment services. From 2001 until 2002, Treacy served as Monster's President and COO, and was a member of if its Board of Directors from 1998 until 2003.
Treacy is charged with securities fraud and conspiracy. The government alleges that Treacy and others engaged in a scheme to backdate stock option grants at Monster. The government alleges that Myron Olesnyckyj, Monster's former General Counsel, was one of Treacy's co-conspirators. In February 2007, pursuant to a cooperation agreement, Olesnyckyj pled guilty to charges of securities fraud and conspiracy in connection with the alleged stock options backdating at Monster.
The scheme at issue was discovered in 2006, when, following news reports of backdating at Monster, the company undertook an internal investigation of its stock option practices. Shortly thereafter, the government served Monster with a related grand jury subpoena. Olesnyckyj was involved in the internal investigation and in responding to the subpoena.
During the internal investigation, Olesnyckyj was tasked with preserving Monster's electronic files. Olesnyckyj obtained 15 computer disks containing information from various sources, exact copies of which were provided to Monster. The disks contain a total of 483,235 documents, estimated to include approximately 2,512,822 pages.
Olesnyckyj was terminated as general counsel in November 2006. He kept a set of the 15 disks at issue. The government has declined Treacy's request to take possession of and review the disks. Treacy now seeks a court order compelling it to do so.
Rule 16(a) (1)(E) of the Federal Rules of Criminal Procedure requires the government to permit Treacy to inspect and copy items that are within its control and material to the preparation of his defense. Brady
requires the government to provide Treacy, on request, with any exculpatory or mitigating evidence in its possession. Treacy invokes these imperatives to contend that the government has an obligation to review Olesnyckyj's computer disks and tender any information that might be material to his defense. According to the government, all Olesnyckyj possesses is a copy of information already in Monster's possession that does not materially differ from what it has already researched pursuant to its constitutional and statutory obligations. Therefore, the government avers, it has already effectively researched the documents contained on Olesnyckyj's disks and produced responsive documents. The government argues that there is no legitimate reason to require it to substantially duplicate work that has already been done.
*2 So long as Treacy does not show that the documents in Olesnyckyj's possession may vary materially from the documents that the government has already examined, the court will not compel the government to undertake a seemingly redundant and unquestionably burdensome search so far into the discovery period. Treacy's motion is denied.
For the foregoing reasons, defendant's motion to compel the government to take custody of certain electronic documents is denied.
End of Document.