*1 THIS MATTER is before the Court upon the Report and Recommendation (DE 118) filed herein by United States Magistrate Judge Robin S. Rosenbaum. The Court has conducted a de novo review of the entire record herein and is otherwise fully advised in the premises.

Accordingly, after due consideration, it is

ORDERED AND ADJUDGED as follows:

1. The Report And Recommendation (DE 118) filed herein by United States Magistrate Judge Robin S. Rosenbaum, be and the same is hereby approved, adopted and ratified in all respects except as follows: Plaintiff shall have until noon on Tuesday, January 19, 2010, to provide Defendants with an exhibit list and a hard copy of all expected trial exhibits; and

2. Defendants Bruce Perraud and Thomas Raffanello's Motion To Compel Government To Identify Documents In Its Electronic Database On Which It Intends To Rely At Trial And Which Are Material To The Preparation Of The Defense And To Exclude All Other Documents (DE 91) be and the same is hereby GRANTED in part and DENIED in part consistent with the terms of this Order and the Report of Magistrate Judge Rosenbaum (DE 118).

DONE AND ORDERED.

ROBIN S. ROSENBAUM, United States Magistrate Judge.

This matter comes before the Court upon Defendants Bruce Perraud and Thomas Raffanello's Motion to Compel Government to Identify Documents in Its Electronic Database on Which it Intends to Rely at Trial and Which are Material to the Preparation of the Defense and to Exclude All Other Documents [D.E. 91] (“Motion to Compel”),[1] upon Order of Referral for report and recommendation [D.E. 97] entered by the Honorable William J. Zloch. I have carefully reviewed Defendants' Motion, all filings in support thereof and in opposition thereto, and the record in this case, have heard argument on December 22, 2009, and am otherwise duly advised in the premises. Based on consideration of these materials, I recommend that the Court grant in part and deny in part Defendants' Motion. More specifically, I recommend that the Court enter an Order directing the Government to provide Defendants with an exhibit list and a hard copy of all expected trial exhibits ten days prior to the start of trial, as the United States has offered to do. Moreover, to the extent that the Government becomes aware of exculpatory evidence that it has not already identified to Defendants, I recommend that the Court require the Government to make such identification immediately upon discovering such evidence. Additionally, should the Government become aware of evidence upon which it intends to rely at trial after turning over the exhibit list ten days before trial, the United States should promptly provide Defendants with such evidence. Finally, I recommend that the Court order the Government to employ its best good-faith efforts in accomplishing all of these tasks.

*2 According to the Second Superseding Indictment [D.E. 109] in this case, Robert Allen Stanford (“Stanford”) wholly owned and controlled Stanford Financial Group (“SFG”). D.E. 109 at 1, ¶ 1. SFG, in turn, served as the parent entity for, among other companies, Stanford International Bank, Ltd. (“SIBL”), a private, offshore bank that marketed certificates of deposit (“CDs”) in the United States, and Stanford Group Company, Stanford Capital Management, and Stanford Financial Group Company. Id. at 1-2, ¶¶ 1, 5.

The Second Superseding Indictment further avers that on February 16, 2009, the SEC filed a complaint against SIBL, Stanford Group Company, Stanford Capital Management, Stanford, and other individuals (collectively, the “SEC Defendants”), in the United States District Court for the Northern District of Texas, claiming, among other allegations, that SIBL used the CDs it sold to orchestrate a “massive, ongoing fraud” (the “Texas Action”). Id. at 3-4, ¶ 10; D.E. 64-3. In response to the SEC's complaint, on February 16, 2009, the United States District Court for the Northern District of Texas issued its Order Appointing Receiver to, among other tasks, “exercise exclusive possession, custody, and control of the assets and records of the SEC Defendants, to trace and identify assets in order to return deposits to defrauded investors, and to assist the SEC with its ongoing investigation.” D.E. 109 at 4, ¶ 11. The Texas Action Court further mandated that the Receiver “ ‘[p]romptly provide the [SEC] and other governmental agencies with all information and documentation they may seek in connection with its regulatory or investigatory activities.’ “ Id. at 5, ¶ 13. Additionally, the Order precluded the SEC Defendants from, among other actions, destroying or disposing of records “that relate in any way to the Receivership Estate or are relevant to [the Texas Action]” and interfering with “the Receiver's taking control, possession, or management of the Receivership Estate or ... interfer[ing] ... with the exclusive jurisdiction of [the Texas court] over the Receivership Estate.” Id. at 4-5, ¶¶ 12, 14.

Besides the Order Appointing Receiver, the Texas Court also issued its Temporary Restraining Order (“TRO”) in the Texas Action on February 16, 2009. Id. at 5-6, ¶ 15. The TRO provided, among other direction, that the SEC Defendants and their “officers, directors, agents, servants, employees, attorneys, and all other persons in active concert or participation with them ... who receive[ ] actual notice of this [TRO] by personal service of otherwise, are restrained and enjoined from destroying, removing, mutilating, altering, concealing, or disposing of, in any manner, any books and records owned by, or pertaining to, the financial transactions and assets of” the SEC Defendants or any entities under their control.” Id.

*3 On September 10, 2009, a federal grand jury returned the Superseding Indictment in this case. See D.E. 29. The Superseding Indictment charged each Defendant with conspiracy to destroy records in an SEC investigation, in violation of 18 U.S.C. § 371 (Count 1), and destruction of records in an SEC investigation, in violation of 18 U.S.C. § 1519 (Count 3).[2] See D.E. 29. More specifically, the Superseding Indictment asserted that on February 17, 2009, the receiver sent an electronic mail (“e-mail”) message that Defendants received, alerting all SFG employees “to the SEC investigation and lawsuit, as well as the court order appointing the [r]eceiver.” Id. at 4-5, ¶ 11; see also id. at 8, ¶¶ 19, 20. According to the Government, the February 17, 2009, e-mail from the receiver advised SFG employees that the court in the Texas Action had “mandated ‘preservation of documents' and that ‘all employees and agents of the Stanford Company cooperate with the [r]eceiver ... [and] all assets and records be turned over to the [r]eceiver as requested.’ “ Id. at 5, ¶ 12. Furthermore, the Superseding Indictment asserted, the e-mail instructed SFG employees that they had been “ ‘ordered to preserve (and not hide or destroy) any and all documents, notes, and records.... [A]ccordingly [,][SFG] employees may not hide, destroy or alter any document or electronic record relating to the company.’ ” Id.

Despite Defendants' alleged knowledge that SFG employees were to preserve all SFG documents and “cooperate with the SEC and the [r]eceiver,” the Superseding Indictment charged, Defendants conspired with each other and others to cause SFG's records to be destroyed and to refuse to provide information to the receiver's representative about the documents of SFG and SFG's operations at the Fort Lauderdale office. Id. at 7, ¶ 16. More specifically, according to the Superseding Indictment, on February 23, 2009, Defendant Raffanello “instructed another SFG employee to contact a shredding company to arrange for the immediate destruction of all the documents at SFG's Fort Lauderdale office.” Id. at 8-9, ¶¶ 17-21. On the same date, the Superseding Indictment contends, Defendant Perraud called the shredding company and requested that it come SFG's Fort Lauderdale office to shred documents. Id. at 9, ¶ 22. The Superseding Indictment further avers that on February 25, 2009, the shredding company arrived at SFG's Fort Lauderdale office, and Defendant Perraud escorted that person to numerous documents, supervising the shredding company's representative as that person packed a 95-gallon bin with documents, hauled the container to a shredder located in the shredding company's truck, and shredded the documents. Id. at 9-10, ¶¶ 24-25. While this allegedly occurred, the Superseding Indictment continues, four additional SFG employees made approximately eight trips between the SFG office and the shredding company's shredder truck with more documents for destruction, and SFG employees retrieved files and documents from cars parked in the SFG parking lot and delivered them to the shredding company's representative for destruction. Id. at 10, ¶¶ 25-26.

*4 The following day, February 26, 2009, the receiver's representative visited SFG's Fort Lauderdale office. At that time, according to the Superseding Indictment, Defendant Raffanello and an unindicted co-conspirator confronted the receiver's representative, the Superseding Indictment charges. Id. at 10, ¶ 27. The Superseding Indictment further alleges that Defendant Raffanello “ordered the [r]eceiver's [r]epresentative to sit in the back office and interceded to prevent the [r]eceiver's [r]epresentative from questioning [Defendant Perraud] regarding SFG's documents and records.” Id.

On December 17, 2009, the grand jury returned the Second Superseding Indictment in the pending case. See D.E. 109. The Second Superseding Indictment charges Defendants Perraud and Raffanello with conspiracy to (1) obstruct the due and proper administration of the law under which a pending SEC investigation was proceeding, in violation of 18 U.S.C. § 1505; (2) destroy evidence and influence the investigation and proper administration of a matter in relation to a matter in within the jurisdiction of the SEC, in violation of 18 U.S.C. § 1519; and (3) destroy and conceal evidence with the intent to impair the evidence's integrity and availability for use in an official proceeding, in violation of 18 U.S.C. § 1512(c), all in violation of 18 U.S.C. § 371. See id. at 1-13. In addition, the Second Superseding Indictment charges Defendants Perraud and Raffanello with each of the underlying substantive crimes alleged in the conspiracy count. See id. at 14-17.

On November 24, 2009, Defendant Perraud filed the pending Motion to Compel. In this Motion, Defendants seek an order requiring the United States to “identify [ ] with specificity those documents which it intends to use in its case in chief and those documents which are material to preparing the defense” from the database of documents to which the Government has previously provided Defendants access. D.E. 91 at 1.

In support of Defendants' Motion to Compel, Defendants assert that in the name of complying with its discovery obligations, the Government has provided Defendants with access to an online electronic database containing more than three million documents, approximately 5,000 of which the Government has indicated “may be relevant to the charges against Raffanello and the additional charges against [Perraud].” Id. at 5. Defendants argue that the Government's discovery production requires Defendants “to search for a needle in a barnful of haystacks.” Id. at 10.

Moreover, Defendants complain, although the database is supposed to be searchable, apparently deficient optical character recognition[3] (“OCR”) techniques employed in creating the electronic database have resulted in a lack of reliability in the search system. Id. at 6-7. More specifically, according to Defendants, the OCR Confidential Level, a statistic that identifies the amount of the document that the OCR software has converted into a searchable format, indicates that the success rate in converting some of the documents placed into electronic format is as low as 50%, meaning that five of every ten letters in a word are construed incorrectly by the computer system. Id. As a consequence, the system does not recognize some documents to contain search terms that the documents, in fact, have. Id.

*5 Additionally, Defendants point out that most OCR systems do not recognize handwritten information, documents that Defendants describe as being “of critical importance in this case.” Id. at 7. As Defendants explain it, “the Government has speculated that there were handwritten notes and documents” that Defendants allegedly caused to be shredded in this case. Id. Defendants, on the other hand, argue that they did not shred any documents that were not already preserved in electronic form. Id. Thus, if handwritten notes existed at one time, Defendants reason, the electronic database should contain them, thus potentially exculpating Defendants. Id.

Finally, Defendants note that the electronic database “is growing daily as new documents are added and any searches done in the past must be re-executed every time the database expands.” Id. As a result, Defendants must keep track of searches they have performed in the past and constantly perform the same searches to ensure that they do not miss any newly-added materials. Id. at 8. This process, according to Defendants, is “cumbersome and incredibly time consuming, [and] it has the potential to create tremendous confusion and overlap, all leading to ineffective results .” Id.

In response, the United States explains the discovery it has provided. In particular, the Government notes that following Defendant Perraud's arraignment on July 7, 2009, the Government provided Defendant Perraud with “all documentary evidence and photographs in its possession which related to the [original Indictment].” D.E. 95 at 4. “Shortly thereafter,” the United States turned over to Defendant Perraud a CD-ROM containing electronic mail (“e-mail”) for all of the SFG Fort Lauderdale employees, including both Defendants, for a time period “slightly greater than that alleged in the [original] Indictment.” Id. Additionally, the Government asserts, it gave Defendant Perraud a copy of a video recording taken from the surveillance camera located outside of SFG's Fort Lauderdale office. Id.

The United States also provided Defendant Perraud with duplicates of six computer hard drives that the Federal Bureau of Investigation (“FBI”) collected from the SFG Fort Lauderdale employees, including both Defendants. Id. Because counsel for Defendant Perraud indicated that he lacked the software necessary to view the hard drives and, further, that obtaining such hardware would be unduly costly, on August 26, 2009, the Government provided counsel for Defendant Perraud with a means by which he could view the hard drives without incurring any expense and asked counsel to contact the Government in the event that he was unable to view the material. Id. at 4-5. United States counsel represents that counsel for Defendant Perraud never took him up on the offer. Id.

Separate and apart from the discovery described above, on approximately August 1, 2009, the United States established iConnect, an online database to house all of the evidence in the Texas Action and the pending matter. Id. at 5. As the Government explains it, iConnect is an “[I]nternet-driven database that allows for the upload and search of volumes of documents and materials,” which enables a user to view and search evidence from any computer with Internet access. Id. According to the Government, iConnect “has all the [G]overnment's documents relating to [the Texas Action], ... [but the Government] performed iConnect searches of [”]Raffanello,[”][”]Perraud[”] and related documents/employees and identified approximately 5,000 documents or [fewer].” D.E. 91-3. To facilitate discovery in both the Texas Action and the instant case, the Government asserts, it provided each defense attorney in both cases with access to iConnect so they may view and search the evidence that the United States has obtained in its investigation. D.E. 95 at 5. Among other information, the iConnect database includes the materials that the Government had previously provided to Defendant Perraud. Id. The United States sent defense counsel an e-mail instructing them how to access iConnect and provided each attorney with a manual to aid in searching the iConnect database. Id. at 6.

*6 Following Defendant Raffanello's arraignment on the Superseding Indictment on September 18, 2009, Government counsel represented to the Court that the United States had provided all of the discovery to Defendant Perraud previously and that it would give Defendant Raffanello the same materials. Id. In addition, Government counsel explained that the United States had established iConnect “to house the evidence collected in the [Texas Action], as well as that in the instant case.” Id.

On October 2, 2009, counsel for the United States wrote defense counsel an e-mail in which he asserted,

D.E. 91-4. Government counsel further explained that “[m]any, but not all, of [the e-mails yielded from a search of the iConnect database for documents containing the names “Raffello,” “Perraud,” or “Belovich”] were turned over earlier in discovery.” Id. The Government continued, however, that “[n] o hard copy documents from the SFG Fort Lauderdale were scanned and uploaded into iConnect because no hard copy documents were retrieved from that office.” Id. Finally, Government counsel advised counsel for Defendants that he would attempt to obtain an index of categories of documentation contained in the iConnect database, and he offered to schedule a conference call between defense attorneys and a United States Postal Inspection Service agent assigned to the pending investigation “to answer some questions regarding the mechanics of iConnect or the indexing.” Id.

On October 29, 2009, the United States forwarded to defense counsel an index of documents housed in iConnect. See D.E. 95-4. This index identifies approximately 178 categories of documents by Bates number prefix, source, and general description of the evidence. See id. The Government contends that “even a cursory review of the Index [makes clear] that only 9 of these 178 categories of evidence could be remotely related to the instant case and these categories are explicitly identified.” D.E. 95 at 7. More specifically, the United States cites the following categories as the only ones bearing a relationship to the pending matter:

D.E. 95 at 7 n. 4; see also D.E. 95-4. Based on the Government's discovery activities in this case, the United States contends that it has complied with its obligations under Rule 16, Fed.R.Crim.P., the Standing Discovery Order, and the Local Rules, and, further, that case law cited by Defendants requires that the Government do no more than it already has. See D.E. 95 at 8-10. Hence, the United States urges the Court to deny Defendants' Motion to Compel.

In their Reply, Defendants takes issue with the Government's failure to state outright that at trial it will not seek to introduce any evidence found in any of the 169 categories of documents identified in the index, that the Government suggested bear no relevance to the case before this Court. D.E. 103 at 2. Moreover, Defendants describe the index that the Government has provided as “incomplete and inaccurate.” Id. In this regard, Defendants complain that iConnect contained fewer than half its current catalogue of documents at the time that the United States turned over the index of the database to Defendants. Id. As a result, the index is incomplete for the current contents of iConnect and Defendants cannot be certain that the documents not yet identified in the index have no relevance to the pending case. Id . Furthermore, even with respect to those documents inventoried on the October 29, 2009, index, Defendants point out, the last two entries fail to alert Defendants to the contents of the documents falling into those categories, both of which are entitled, “TO BE DESCRIBED AT LATER DATE.” Id.; see also D.E. 95-4 at 10-11. For these reasons, Defendants argue that the Court should grant the relief that they request in their Motion to Compel.

On December 22, 2009, the Court heard argument on Defendants' Motion to Compel. During the hearing, Defendants emphasized the points that they made in their briefs. In particular, Defendants complained that the Government has referred to a universe of approximately 5,000 documents that it deems relevant to these proceedings, but that it has failed to identify which documents fall within that category. Additionally, for the first time, Defendants modified their request to seek what they described as a “trial order” requiring the United States to identify all documents it intends to use as exhibits during trial.

In response to Defendants' argument, the Government confirmed that it derived its reference to the approximately 5,000 relevant documents by conducting a search of the electronic database for the names “Raffanello” and “Perraud.” In addition, the Government stated that the index of the iConnect database is complete in that it covers categories of documents by their Bates-number ranges, based, in part, on from where the Government obtained the documents in the first place. Thus, although the database may contain more documents today than it did in October, when the Government provided Defendants with the index in this case, the index, nonetheless, covers all of the documents because each document falls by Bates number within one of the approximately 178 categories delineated in the index. In other words, the original index reserved certain Bates-number ranges for categories of documents. As the Government receives documents falling within those categories, it Bates-numbers them accordingly and uploads them onto iConnect. For example, the Government indicated that approximately two weeks before the hearing, it had received a computer server from the Texas Action receiver after Defendants had subpoenaed the information from the receiver. The Government then uploaded that server onto iConnect into a pre-existing category on the index. The Government reiterated that with the exception of isolated documents such as the document retention policy, which the Government was separately identifying to Defendants, it believed that the documents relevant to the pending case all are housed in the nine index categories previously articulated.

*8 With regard to the searchability of the database, the Government related that in addition to the OCR search capability for the documents, the company that put the documents into the electronic database format hand-keyed numerous fields, including, among others, author, date, recipient, and custodian, for the documents that the company separately scanned. Consequently, the database may be electronically searched not only for documents containing certain words within their content but also by any of the numerous fields. As for records obtained from the hard drives, such as the Fort Lauderdale SFG office's computers and server, the Government noted that the database mined the metadata[4] of these documents to fill the fields indicated above, as well as other searchable fields. In response to Defendants' concern regarding the searchability of the database for handwritten documents, the United States explained that it collected no actual handwritten documents. Rather, any handwritten documents that might have existed at one point were scanned into the Fort Lauderdale SFG office's computer system by Fort Lauderdale SFG employees. Consequently, Defendants can search these resulting .pdf documents by field, such as the individual who scanned the document, the date of the scanning, and other fields. The United States also indicated that it relies upon the exact same method to search the iConnect database as it has provided to Defendants, including the index and the electronic search procedure, and it added that it has found the search system to be “extremely reliable.”

Finally, the United States offered to provide Defendants ten days before trial with an exhibit list, along with the hard copies of the exhibits that it intends to use at trial. Because the Government continues to engage in the process of reviewing documents from the iConnect database and reconstructing shredded documents it has collected in the course of the investigation into the activities charged in this case, however, the Government expressed its concern that it not be limited to relying solely on the documents included within its exhibit list. Rather, the Government explained, while it would make a good-faith effort to identify all documents on which it intends to rely, the Government requested the opportunity to be able to add new exhibits to its list upon discovering the relevancy of any such documents. Should the Government discover any such documents after providing Defendants with its exhibit list, the Government noted, it would immediately alert Defendants to this fact, providing them with a copy of the document at issue.

Defendants rest their argument primarily on Rule 16(a)(1)(E), Fed.R.Civ.P. See D.E. 91 at 8-10. Thus, the Court begins by reviewing this rule:

Defendants, noting that Rule 16 and principles of due process demand that the Government provide “meaningful discovery,” D.E. 91 at 9 (emphasis in original), contend that the United States has failed to satisfy its obligation in this case because it has instead “borrowed a tactic from Gene Hackman in the movie ‘Class Action’ and chosen to overwhelm the defense and include over 3 million mostly irrelevant and immaterial documents mixed in with the materially relevant documents that are called for under Rule 16.” Id. at 8. Thus, Defendants request that the Court order the United States to identify expressly the evidence that the Government intends to use in its case in chief and the evidence that is material to preparing the defense, and they cite United States v. McDade, 1992 WL 382351 (E.D.Pa.1992); United States v. Poindexter, 727 F.Supp. 1470 (D.D.C.1989); and United States v. Turkish, 458 F.Supp. 874 (S.D.N.Y.1978) as examples of cases where “courts have entered orders requiring the government to identify the documents that are actually called for under Rule 16(a) (1)(e).” Id. at 9.

The Court's research has revealed, as Defendants suggest, that several courts have considered similar requests in cases containing large document productions by the United States. Many of the courts in these cases, however, have declined to award the relief that Defendants seek. In reaching this conclusion, these courts have found that “[t]he clear language of Rule 16(a)(1) ... does not require the Government to identify which documents fall in each category [set forth at Subsection (E) ]-it only requires the production of documents responsive to any category.” United States v. Nachamie, 91 F.Supp.2d 565, 569 (S.D.N.Y.2000); see also United States v. Scrushy, 2004 WL 483264, *3 (N.D.Ala. Mar.3, 2004) (“The court agrees with the Government that the plain language of Rule 16(a)(1)(E)(ii) does not require the Government to specify from among the universe of discovery documents produced to defendant which of those documents it intends to rely upon at trial.”) (emphasis in original); United States v. Carranza, 2007 WL 2422033, *3 (N.D.Ga. Aug.21, 2007) (“The language of Rule 16(a)(1)(E) ... does not require the government to make specific identification of its case-in-chief documents separately from the other two categories of documents required to be produced.”) (emphasis in original); United States v. Carrington, 2002 WL 31496199, *2 (S.D.N.Y. Nov.7, 2002); United States v. Alvarado, 2001 WL 1631396, *5 (S.D.N.Y. Dec.19, 2001).

Moreover, these courts have criticized cases reaching the contrary conclusion. In this respect, the Nachamie Court noted that as of that time, although three district courts (including two of those cited by Defendants in their Motion to Compel) had found that the Government has a duty to identify those documents that it intends to use in its case in chief at trial, “none of those decisions are supported by the language of Rule 16(a)(1) or prior case law.” 91 F.Supp.2d at 569. Beginning with Turkish, the Nachamie Court observed that Turkish “cited no authority for its conclusion that the Government had an obligation to identify the documents it intended to use in its case-in-chief, and it mistakenly relied on another district court case, United States v. Countryside Farms, Inc., 428 F.Supp. 1150, 1154 (D.Utah 1977), which held merely that the Government had a duty to produce such documents.” Nachamie, 91 F.Supp.2d at 569 (emphasis in original).

*10 In next discussing Poindexter, the Nachamie Court noted that Poindexter “relied only on Turkish and Countryside Farms for its holding [requiring the Government to identify the documents it intended to use in its case in chief, and, thus], simply compounding the error made in Turkish. Nachamie, 91 F.Supp.2d at 569. The Nachamie Court found a third case, United States v. Upton, 856 F.Supp. 727 (E.D.N.Y.1994), to be similarly deficient. Id.

Having disapproved of the cases requiring the United States to specify which documents in its production it intends to use in its case in chief, the Nachamie Court wrote, “[A] court has no license to rewrite the Federal Rules of Criminal Procedure. While it might be wise for the Advisory Committee on Criminal Rules to consider an amendment that would require a party to identify those documents it intends to use in its case-in-chief, no such requirement no exists in the plain language of the Rule.” Id. at 570. Thus, the Nachamie Court concluded that it could not direct the Government to identify the documents it intended to offer in its case in chief. Id.

As noted previously, within the Eleventh Circuit, courts in the Northern District of Alabama and the Northern District of Georgia have reached the same conclusion that the Southern District of New York did in Nachamie. See Scrushy, 2004 WL 483264 (N.D.Ala. Mar.3, 2004); Carranza, 2007 WL 2422033 (N.D.Ga. Aug.21, 2007). As the Scrushy Court explained,

2004 WL 483264 at *3. In response to the Scrushy defendant's argument that the volume of discovery that the Government produced impeded his ability to prepare his case, the Scrushy Court replied,

Id. (quoting United States v. Jordan, 316 F.3d 1215, 1253 (11th Cir.2003). Thus, upon review of the plain language of Rule 16(a)(1)(E), Fed.R.Crim.P., as well as the cases construing the obligations imposed by Rule 16, the Court concludes that nothing in Rule 16(a)(1)(E) requires the Government to identify the various subsets of evidence it produces pursuant to that rule.

*11 Nevertheless, this fact does not endow the Government with the right to drown a defendant in a sea of irrelevant, or even tangentially relevant, documents in an effort to hide the few particularly relevant documents from a defendant in the hope that trial will ensue before the defendant discovers such materials. If it did, the rule might well present problems under the Fifth (due process) and Sixth Amendments (speedy trial).

As enacted, however, the Federal Rules of Criminal Procedure create no such difficulties. Defendants correctly point out that Rule 16(d)(1), Fed.R.Crim.P., authorizes the court “for good cause” to “grant ... appropriate relief” with respect to the conduct of discovery. Thus, although Rule 16(a)(1)(E) does not require the United States to identify documents it intends to use in its case in chief, the Court may, in appropriate circumstances, order such relief. For the reasons explicated in Scrushy, however, courts should not entertain such requests for relief lightly.

In considering whether relief under Rule 16(d)(1) is appropriate in this case, as a preliminary matter, the Court notes that this is not a case where the Government appears to have attempted to obfuscate the relevant documents by burying them without direction under an avalanche of irrelevant materials. To the contrary, the Government has separately directed Defendants to the materials it deems to be most relevant to this case, and it has given Defendants an index to the remaining searchable database to enable Defendants to focus their review efforts on those documents most likely to be relevant to Defendants' defense. Moreover, the United States has provided Defendants with the same search capabilities upon which the Government must rely in reviewing the materials in the database. Despite the Government's efforts, however, Defendants identify some potential problem areas with the discovery production, most notably, possible problems with the searchability of the database resulting from allegedly deficient OCR.

Apparently with these issues in mind, both parties direct the Court to a case where another district court took an intermediate approach to the Government's massive discovery production. In United States v. McDade, 1992 WL 382351 (E.D.Pa. Dec.11, 1992), the United States produced discovery consisting of documents contained in multiple rooms, each “chock full of apparently full file cabinets.” Id. at *1. As in this case, the defendant in McDade argued that the mountain of discovery that the Government produced rendered the defense incapable of identifying efficiently the evidence that was relevant and critical to the defendant's case. Id. Consequently, the McDade defendant requested that the court require the Government to provide the defendant with a witness list and an exhibit list, even though trial was three-and-one-half months away. Id.

Expressly finding that “to force the government to set forth its trial plans in mid-December for a trial which starts at the end of March would be to compel too much,” id. at *2, the court instead directed the United States, “to the best of its good-faith ability, to tell the defense of any discrete parcels of material that it [did] not plan to use at trial. In so doing, [the court] expressly [did] not tell[ ] the government to reveal to the defense exactly what it intend[ed] to use at trial.” Id. The court further “invite[d] the defense to notify the court of any governmental noncompliance with the letter or spirit of [the] order,” specifically noting that if the proposed plan proved ineffectual, the court might “consider taking a more stringent, specific approach.” Id.

*12 In considering the instant case in light of McDade, the other case law, and Defendants' constitutional rights to due process and a speedy trial, among others, this Court concludes that the Government has offered a reasonable and appropriate approach to resolving Defendants' Motion to Compel in this case. Although under an analysis consistent with Nachamie and the several other cases that followed it, arguably, the Government need not do more than it already has in directing Defendants to the nine categories of documents and the universe of 5,000 records containing the names “Raffanello” or “Perraud,” the United States has, nonetheless, offered to provide Defendants with both its exhibit list and hard copies of the exhibits ten days prior to the start of trial. Moreover, the United States has agreed to use its best good-faith efforts in so doing, noting that if, after providing the exhibit list and exhibits, it discovers any other evidence upon which it may rely at trial, that it will immediately turn over that information to Defendants. The court in McDade, the case upon which Defendants rely, did not require this much of the Government. Here, where the United States has explained that it has provided Defendants access to the 3 million documents comprising the discovery in the Texas Action only in an abundance of caution to enable Defendants to consider whether they wish to rely upon any of that evidence in their defense, where the Government has provided Defendants with the same search capabilities as the Government itself uses, where the United States has agreed to inform Defendants ten days before trial of the exhibits upon which they wish to rely, and, finally, where the Government has indicated that it believes that it has directed Defendants to all exculpatory evidence, I recommend that the Court refrain from imposing further identification requirements on the Government.

For the foregoing reasons, I respectfully recommend that the Court grant in part and deny in part Defendants Bruce Perraud and Thomas Raffanello's Motion to Compel Government to Identify Documents in Its Electronic Database on Which it Intends to Rely at Trial and Which are Material to the Preparation of the Defense and to Exclude All Other Documents [D.E. 91]. More specifically, I recommend that the Court enter an Order directing the Government to provide Defendants with an exhibit list and a hard copy of all expected trial exhibits ten days prior to the start of trial, as the United States has offered to do. Moreover, to the extent that the Government becomes aware of exculpatory evidence that it has not already identified to Defendants, I recommend that the Court require the Government to make such identification immediately upon discovering such evidence. Additionally, should the Government become aware of evidence upon which it intends to rely at trial after turning over the exhibit list ten days before trial, the United States must promptly provide Defendants with such evidence. Finally, I recommend that the Court order the Government to employ its best good-faith efforts in accomplishing all of these tasks.

*13 The parties shall have ten (10) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with the Honorable William J. Zloch, United States District Judge. Failure to file objections timely shall bar the parties from a de novo determination by the district judge of an issue covered in the report and shall bar the parties from attacking on appeal the factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.1993); LoConte v. Dugger, 847 F.2d 745 (11th Cir.1988); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. Unit B 1982) (en banc );[5] 28 U.S.C. § 636(b)(1).

FILED AND SUBMITTED at Fort Lauderdale, Florida, this 24th day of December, 2009.