UNITED STATES OF AMERICA, v. BARRY J. CADDEN, et al., Defendants Criminal No. 14-10363-RGS United States District Court, D. Massachusetts Filed July 13, 2015 Boal, Jennifer C., United States Magistrate Judge ORDER ON DEFENDANTS' PRELIMINARY MOTION TO COMPEL DISCOVERY [Docket No. 230] *1 Defendants[1] have moved for an order compelling the government to produce certain information. Docket No. 230. For the following reasons, the Court grants in part and denies in part the motion. I. BACKGROUND This case arises out of a fungal meningitis outbreak that occurred in 2012. A federal investigation traced the source of the outbreak to preservative-free methylprednisolone acetate (“MPA”) injections compounded by New England Compounding Pharmacy, Inc. d/b/a New England Compounding Center (“NECC”). As a result of the outbreak, over seven hundred patients in twenty states were diagnosed with a fungal infection, of which sixty-four died. On December 16, 2014, a federal grand jury returned an indictment in this case. Docket No. 1. The indictment charges 14 defendants and contains 131 counts, including a RICO charge, comprising 78 separate racketeering acts and numerous alleged violations of food, drug and pharmacy statutes and regulations. The government has made four discovery productions so far, totaling over eight million pages. Docket No. 231 at 2; Docket No. 237 at 2-5. The government represents that each production was tailored to specific defendants based on the charges each defendant faces. Docket No. 237 at 2-5. Each production was provided on a hard drive or discs. Id. The electronic documents were generally organized into folders, as well as searchable load-ready electronic databases. Id. The initial discovery production included a folder labeled “Indictment Counts,” which contained records and documents relevant to the 131 counts in the indictment, organized by count. Id. at 2. The first two discovery productions were accompanied by spreadsheets identifying “hot” and “relevant” records and documents within the electronic databases. Id. at 2-3. In addition, each production was accompanied by detailed letters describing the information provided in the production, the location where the information was stored on the hard drive or discs, and the corresponding Bates range of the information. Id. at 2-5. While the Defendants recognize that the government “has made a commendable effort to provide these voluminous materials in an organized manner,” they argue that the volume of discovery in this case requires the government to do more. Docket No. 231 at 2. They filed the instant motion on May 1, 2015. Docket No. 231. The government filed its opposition on May 15, 2015. Docket No. 237. The Court heard oral argument on June 30, 2015. II. ANALYSIS A. Standard Of Review Under Brady v. Maryland, 373 U.S. 83 (1963), “the government has a duty to disclose evidence in its possession that is favorable to the accused and material to guilt or punishment.” United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011) (citing Brady, 373 U.S. at 87). “Evidence is ‘favorable to the accused’ if it is either exculpatory or impeaching in nature and ‘material’ if there is a reasonable probability that, had it been disclosed, the result of the proceeding would have been different.” Id. (citations omitted).[1] Brady, however, does not establish a general constitutional right to discovery in a criminal case. United States v. Rodriguez-Rivera, 473 F.3d 21, 25-26 (1st Cir. 2007) (citations omitted). *2 “The government is primarily responsible for deciding what evidence it must disclose to the defendant under Brady” and such decision is generally final unless it is later shown that exculpatory evidence was not disclosed. Id.(citing Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987)). If a defendant seeks access to specific materials that the government contends are not discoverable under Brady, the defendant must make some showing that the material in question could contain favorable, material evidence. Id. at 268-69. That showing cannot be based on speculation. Id. The government's disclosure obligation extends to evidence used to impeach the credibility of a government's witness. Giglio v. United States, 405 U.S. 150, 154-55 (1972). Indeed, the primary interest secured by the Sixth Amendment's confrontation clause “is the right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315 (1974); United States v. Lindstrom, 698 F.2d 1154, 1159-1166 (11th Cir. 1983). In addition to the constitutionally required disclosure by the government of exculpatory material, Rule 16 of the Federal Rules of Civil Procedurerequires the prosecution in a criminal case to provide certain information in its possession to the defense: Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies of portions of any of these items, if the item is within the government's possession, custody or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant. Fed. R. Crim. P. 16(a)(1)(E). The materiality standard for Rule 16 “essentially tracks the Brady materiality rule, though some courts have found that materiality under Rule 16 is broader than under Brady.” United States v. Bulger, 928 F. Supp. 2d 305, 324 (D. Mass. 2013) (internal quotations and citations omitted). “[O]ther courts have focused on the usefulness of the evidence to defending the case including the potential for ‘uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.’ ” Id. (citations omitted). Nevertheless, “the requested information must have more than an abstract relationship to the issue presented; there must be some indication that the requested discovery will have a significant effect on the defense.” Id. (citation omitted). The defendant bears the burden to make a “prima facie showing of materiality.” Id. (citing United States v. Carrasquillo-Plaza, 873 F.2d 10, 12 (1st Cir. 1989)). B. Exhibits To Witness Interviews First, the Defendants argue that the government should be ordered to produce the exhibits to witness interview memoranda organized by interview. Docket No. 231 at 3-5. The Defendants' request seems to be premised on the assumption that the government must already have copies of all of the exhibits organized by interview memoranda. Id. at 4. However, the government states that it has produced the exhibits in the manner in which it maintains them. Docket No. 237 at 6-8. Depending on the agency performing the interview, exhibits were appended to the interview report or identified by Bates number or description. Id. at 6. Where the exhibits were identified by description, the detail of the description varied. Id. However, the government has offered to assist defense counsel with questions about discovery, including identification of exhibits to witness interviews. Id. at 6 n. 6. In light of the government's representation and the fact that the Defendants have not cited to any authority to support this request, the Court denies Request I.[2] C. Documents From State Agencies *3 The Defendants seek an order compelling the government to obtain and produce documents possessed by Massachusetts Department of Health (“DPH”), the Massachusetts Board of Pharmacy (which is a Board within DPH), and the Michigan Attorney General's Office (the “Michigan AG”).[3]Docket No. 231 at 7-9. The government asserts that it has produced all discoverable information from all law enforcement agencies that formally participated in the criminal investigation that resulted in the case and that the DPH and the Michigan AG did not participate in the government's federal investigation. Docket No. 237 at 8-12. Courts have generally held that documents are within the government's possession, custody or control if they are within the possession of a member of the prosecutorial team. See United States v. Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003); United States v. Ramos-Cartagena, 9 F. Supp. 2d 88, 90-91 (D.P.R. 1998). Therefore, information possessed by the United States Attorney's Office may be attributed to the prosecution. Ramos-Cartagena, 9 F. Supp. 2d at 90-91. “The ‘prosecution’ also includes police officers, federal agents, and other investigatory personnel who participated in the investigation and prosecution of the instant case.” Id. at 91; see also United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 474 (E.D. Cal. 1994)(“Clearly, in most criminal prosecutions, it is the investigating agency which holds the facts required to be disclosed, and it is only in giving those facts to the prosecution does a criminal case get off the ground.”). “Whether a state or another federal agency may be considered part of a federal prosecution team depends upon the level of involvement between the United States Attorney's Office and the state or agency which holds the alleged Brady material.” Ramos-Cartagena, 9 F. Supp. 2d at 91 (citations omitted). “The inquiry is not whether the United States Attorney's Office physically possesses the discovery material; the inquiry is the extent to which there was a ‘joint investigation’ with another agency.” Id. (citations omitted). *4 Materials in the possession of state agencies are generally not in the government's possession, custody, or control, and therefore need not be disclosed. Liquid Sugars, Inc., 158 F.R.D. at 474 (citing United States v. Aichele, 941 F.2d 761 (9th Cir. 1991)). The government need not disclose information in the possession of state agencies unless there was a joint state and federal prosecutorial effort in obtaining the return of the indictment. Ramos-Cartagena, 9 F. Supp. 2d at 91. Factors that courts have considered in determining whether a joint investigation occurred include: “(1) whether one agency acts on behalf of or under the control of another; (2) the extent to which the two agencies are working as a team and are sharing resources; and (3) whether the agency charged with possession of evidence in the other agency's files had ready access to it.” United States v. Ferguson, 478 F. Supp. 2d 220, 338-239 (D. Conn. 2007) (citing United States v. Risha, 445 F.3d 298, 304 (3rd Cir. 2006)). The Local Rules of this District have codified the government's obligations with respect to materials in the possession of other federal, state and local agencies. Local Rule 116.8 requires members of the United States Attorney's Office to “inform all federal, state, and local law enforcement agencies formally participating in the criminal investigation that resulted in the case of the discovery obligations that are set forth in these Local Rules.” L.R. 116.8. “Local Rule 116.8 also requires the United States Attorney's Office to obtain any information subject to disclosure from each agency participating in the investigation that resulted in the case.” United States v. Diabate, 90 F. Supp. 2d 140, 142 (D. Mass. 2000). “The Supreme Court reminded prosecutors of that obligation in Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995). As the Supreme Court stated, ‘the individual prosecutor has a duty to learn any favorable evidence known to others acting on the government's behalf in the case, including the police.’ ” Id. (citing Kyles, 514 U.S. at 437). 1. DPH On the record before the Court, there is no evidence that DPH (or the Board of Pharmacy) participated in the government's criminal investigation that resulted in this case. Although there appears to have been some cooperation between the federal government and DPH, there is no evidence that the Indictment resulted from a specific cooperative effort between federal prosecutors and the DPH. While the DPH's Preliminary Investigation Findings attached to Defendants' memorandum references an “ongoing” and “collaborative investigation with the FDA,” it appears that the DPH's investigation was focused on appropriate regulatory sanctions under administrative law. See Docket No. 231-3 at 10. Accordingly, information maintained by the DPH is beyond the possession, custody or control of the government, except to the extent that the government has already requested and received specific information from them. The government has represented that it has already produced in discovery all of the records from DPH. Docket No. 237 at 10 n. 11. 2. Michigan AG Similarly, Defendants have not shown any evidence that the Indictment in this case resulted from a specific cooperative effort between federal and Michigan prosecutors. The Defendants point to a November 23, 2013 press release stating that the Michigan AG and United States Attorney Carmen Ortiz “announced a new coordination of their respective and continuing independent state and federal criminal investigations of New England Compounding Center (NECC) ...” See Docket No. 231-4 at 2 (emphasis added). However, the government represented that while the federal and state governments conducted parallel and coordinated investigations, the government did not provide any direction or guidance to the Michigan AG about its criminal state investigation, and in turn, did not receive any direction or guidance from the Michigan AG about the federal criminal investigation. Docket No. 237 at 10-11. The government has also represented that it does not have access to the Michigan AG's files and the Michigan AG does not have access to the government's files. Id. at 11. While the government concedes that Michigan AG representatives participated in its interviews of Michigan-based victims, such joint interviews are not sufficient to transform the two independent investigations into a joint one. See, e.g., United States v. Ferguson, 478 F. Supp. 2d 220, 239 (D. Conn. 2007).[4] Because there is no evidence that the Michigan AG was part of the prosecution team, the Court finds that any materials in their files are not within the government's possession, custody, or control. *5 Accordingly, the Court denies Request II. D. Search Terms During the execution of two search warrants at NECC, federal law enforcement agents seized a substantial amount of electronic media from the company, including a computer server on which the email for NECC employees was stored. Docket No. 237 at 12. In order to execute the search warrant and review the email and other electronic media seized, the government devised a list of search terms to identify the emails that could be relevant to the investigation. Id. In addition, then-counsel to NECC provided the government with a list of search terms to identify potentially privileged emails and other files. Id. The criminal investigation team reviewed emails and files from the electronic media that contained one of the relevant search terms, and either did not contain a potentially privileged search term, or had been reviewed and cleared by an independent filter team set up to review potentially privileged search term documents. Id. The total number of emails designated for review was approximately 1.1 million. Id. at 13. All 1.1 million emails were disclosed to the Defendants in the discovery productions on three searchable, electronic databases. Id. The Defendants seek an order compelling the government to disclose the search terms used to arrive at the 1.1 million emails reviewed. Docket No. 231 at 9-11. They argue that they need the search terms in order to determine whether there may be discoverable emails that were inadvertently omitted from the government's production. Id. at 10. The Defendants, however, have not shown that the government's search terms are material and, therefore, discoverable. See, e.g., United States v. Fumo, No. 06-319, 2007 WL 3232112, at *7 (E.D. Pa. Oct. 30, 2007)(Government's “search protocols and keywords are not ‘material’ for purposes of Rule 16(a)(1)(E).”). Accordingly, the Court denies Request III. E. Exhibits To Be Used In Government's Case-In-Chief The Defendants seek an order compelling the government to identify which items produced in automatic discovery it intends to use in its case-in-chief. Docket No. 231 at 12. The Court denies this request as premature. In support of this request, the Defendants cite to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure, which requires the government to produce three categories of documents: (i) items that are material to preparing the defense; (ii) items the government intends to use in its case-in-chief at trial; and (iii) items obtained from or belonging to the defendant. Fed. R. Crim. P. 16(a)(1)(E). While the rule requires the government to produce materials it intends to use in its case-in-chief, it does not require the government to disclose an exhibit list at the pretrial discovery stage. See, e.g., United States v. June, No. 10-30021-MAP, 2011 WL 4443429, at *3 (D. Mass. Sep. 22, 2011) (denying defendant's request for production of an exhibit list during the discovery phase); United States v. Causey, 356 F. Supp. 2d 681, 687 (S.D. Tex. 2005) (“The plain language of Rule 16 does not require the government to specify from among the universe of discovery documents produced to defendants which documents it considers material to the defense or which documents it intends to use in its case-in-chief.”); United States v. Nachamie, 91 F. Supp. 2d 565, 570 (S.D.N.Y. 2000) (“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 now exists in the plain language of the Rule.”). *6 The Court notes that Local Rule 117.1 requires that, at least seven days before trial, the government “provide the defendant with copies of the exhibits and a premarked list of the exhibits the government intends to use in its case-in-chief.” L.R. 117.1(a)(8)(B). In a complex case such as this one, it is within the discretion of the District Court to require the government to comply with this rule well before the seven-day period required by the rule. That discretion, however, belongs to the District Judge, not this Court. See June, 2011 WL 4443429, at *3. Accordingly, this Court does not order the government to identify which documents it intends to use at trial at this time and denies Request IV. F. Exculpatory Information The Defendants also ask the Court to compel the government to specifically identify (by Bates Number or description) all of the exculpatory evidence contained within its productions. Docket No. 231 at 13-14. The Court denies this request. “[A]s a general rule, the government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence.” United States v. Warshak, 631 F.3d 266, 297 (6th Cir. 2010) (citations omitted). However, the government may violate its duties under Brady if there is evidence that the government, for example, padded an open file with pointless or superfluous information to frustrate the defendant's review of the file. Id. In addition, creating a voluminous file that is unduly onerous to access may also raise Brady concerns. Id. Here, there is no evidence that the government padded its productions with entirely irrelevant documents. In addition, the government provided the defense with a list of “hot” and relevant documents within its productions. There is also no evidence that the government made access to the documents unduly onerous. Accordingly, the Court denies Request V. G. Grand Jury Transcripts And Exhibits The Defendants request that the Court order the government to produce grand jury transcripts and exhibits. Docket No. 231 at 14-16. Grand jury proceedings are generally secret. United States v. Burgoin, No. 11-40057-04, 2011 WL 6372877, at *5 (D. Kan. Dec. 20, 2011) (“As a matter of public policy, grand jury proceedings generally must remain secret except where there is a compelling necessity.”). Pursuant to Rule 6(e)(3)(E)(ii) of the Federal Rules of Criminal Procedure, the Court has discretion to authorize the disclosure under certain circumstances, including “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that has occurred before the grand jury.” Courts have required the defendant to show a “ ‘particularized need’ for the information that overrides the secrecy afforded to the grand jury.” See, e.g., United States v. Mariani, 7 F. Supp. 2d 556, 564 (M.D. Pa. 1998) (citations omitted). A defendant is not entitled to grand jury materials “in order to engage in a fishing expedition in hopes of uncovering an impropriety or defect in the proceedings where he has no basis to conclude that such an impropriety or defect exists.” United States v. Abounnajah, No. CR-91-00146, 1991 WL 42895, at *2 (E.D.N.Y. Mar. 26, 1991). Here, the Defendants have provided no basis for obtaining grand jury transcripts and exhibits at this time. Therefore, the Court denies this request. H. Table Of Contents Local Rule 116.10 provides that: Any party producing more than 1,000 pages of discovery in a criminal case shall provide a table of contents that describes, in general terms, the type and origin of the documents (for example, “bank records from Sovereign Bank for John Smith,” “grand jury testimony of Officer Jones”) and the location of the documents so described within the larger set (for example, by Bates number). *7 With regard to materials being made available for inspection, the government provided certified inventories of evidence (“CIEs”), which is the form used by the FDA to document all items held in evidence. Docket No. 237 at 21; Docket No. 237-5. Defendants argue that CIEs are not the same as tables of contents, and that they are not sufficient to permit Defendants to efficiently determine what items they want to inspect. Docket No. 231 at 17-18. In addition, Defendants state that “[t]here is no doubt that the Government must have more detailed tables of contents of that material in its possession, and it should be required to provide it to Defendants to streamline the discovery process.” Id. at 18. The government, however, represents that it does not have more detailed tables of contents of those items. Having reviewed the CIEs provided by the government in response to Defendants' motion, they appear to be sufficiently detailed to satisfy Rule 116.10. With respect to electronic databases, the Defendants state that the government has not provided any tables of contents at all. Docket No. 231 at 18. However, in each letter accompanying the government's productions, the government generally described the documents, their origin, and identified the Bates ranges for each database. Accordingly, the Court also denies this request. I. Information Concerning Materials Not Provided The Defendants request that the government “provide some additional information (akin to a ‘privilege log’) concerning the materials it has deemed not discoverable.” Docket No. 231 at 19. The Defendants request is extraordinary and not supported by any authority. Accordingly, the Court denies this request. J. Searchable Formats The government produced some of the automatic discovery in electronic databases. Docket No. 231 at 20. Those files are fully searchable. Id. The government also produced some documents in their native format, which included a mix of searchable and non-searchable files. Id. The Defendants request that the Court compel the government to produce all native files in a searchable format. Docket No. 231 at 20-21. As noted by the Sixth Circuit in United States v. Warshak, there is scant authority on the manner in which parties are to produce electronic discovery in criminal cases. United States v. Warshak, 631 F.3d 266, 296 (6th Cir. 2010). Rule 16 of the Federal Rules of Criminal Procedure is “entirely silent on the issue of the form that discovery must take; it contains no indication that documents must be organized or indexed.” Id. The Warshak court declined to find that the district court abused its discretion in denying the defendants' request that the government should be required to produce discovery in a searchable format. Id. That court noted that the discovery was more navigable than the defendants had represented and that the government “did provide the defense with something of a guide to the electronic discovery.” Id. Here, the government has provided descriptions of the documents it produced; twenty-nine searchable electronic databases; a detailed folder structure containing non-database materials; a folder labeled “Indictment Counts” that contains records and documents most relevant to the 131 counts in the indictment, and spreadsheets identifying “hot” and “relevant” records and documents within the production. Docket No. 237 at 25. While some of the electronic materials were produced in a non-searchable format, the government has represented that they were produced in their native format in the manner in which the government maintains them. Id.Accordingly, the Court declines to order the government to provide all native files in a searchable format.[5] K. Notes And Drafts Of All Witness Interviews And Memoranda *8 The Defendants next argue that the government should be required to produce notes and drafts of all witness interview memoranda (including metadata) because differences between these notes/drafts and the final interview memoranda would be discoverable as information material to the preparation of the defense. Docket No. 231 at 21-22. Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure requires the government to disclose information it possesses which is material to the preparation of the defense. Rule 16(a)(2), however, “does not authorize the discovery or inspection of reports, memoranda or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” Fed. R. Crim. P. 16(a)(2). “Nearly all rough notes and interview draft summaries would likely qualify as ‘internal government documents’ under Rule 16.” United States v. Wirth, No. 11-256 ADM/JJK, 2012 WL 1110540, at *4 (D. Minn. Apr. 2, 2012). Nevertheless, draft interview memoranda is discoverable if a material difference exists between the rough notes or draft summaries and the final summaries. Id.; see also United States v. Serrano, No. 07-118 CAS, 2008 WL 1846577, at *1 (C.D. Cal. Apr. 21, 2008). Accordingly, to the extent that any draft interview reports at issue are inconsistent with the final report, the government shall produce them.[6] L. Verbal Promises, Rewards And Inducements The Defendants request an order compelling the government to identify and describe any and all promises, rewards, or inducements that the government, or any agent thereof, verbally communicated to any witness. Docket No. 231 at 23. The government is required under Local Rule 116.2(b)(1)(C) to disclose “whether any promise, reward or inducement has been given to any witness whom the government anticipates calling in its case-in-chief ...” The government represents that it has complied with this rule by producing all such documents, including letters and immunity orders. Docket No. 237 at 26. The government further represented that there are no verbal communications discoverable under this rule. Id. Accordingly, the Court denies this request. M. Preliminary And Final Transcripts Finally, the Defendants request an order compelling the government to produce all preliminary and final transcripts. Docket No. 231 at 24. The government represents that it has produced all preliminary transcripts in its possession, and identified for the Defendants the transcripts' locations in the productions. Docket No. 237 at 26. The government also represents that it does not have any final transcripts of recordings. Id. at 27. Therefore, the Court also denies this request. III. ORDER For the foregoing reasons, the Court grants in part and denies in part the Defendants' motion. The government shall produce any draft interview notes and reports that are inconsistent with the final report within thirty days of the date of this order. Footnotes [1] The following defendants filed the motion: Barry J. Cadden, Sharon Carter, Glenn Chin, Kathy Chin, Scott Connolly, Joseph Evanosky, Christopher Leary, Robert Ronzio, Alla Stepanets, Gene Svirskiy, and Michelle Thomas. [1] Local Rule 116.2 defines exculpatory evidence as follows: Exculpatory information is information that is material and favorable to the accused and includes, but is not necessarily limited to, information that tends to: (1) cast doubt on defendant's guilt as to any essential element in any count in the indictment or information; (2) cast doubt on the admissibility of evidence that the government anticipates using in its case-in-chief, that might be subject to a motion to suppress or exclude, which would, if allowed, be appealable pursuant to 18 U.S.C. § 3731; (3) cast doubt on the credibility or accuracy of any evidence that the government anticipates using in its case-in-chief; or (4) diminish the degree of the defendant's culpability or the defendant's Offense Level under the United States Sentencing Guidelines. LR 116.2(a). [2] The Court refers to each of the Defendants' requests using the same Roman numerals in their memorandum of law. [3] The Defendants' original request asked the government to produce documents in the possession, custody or control of “every federal, state, and local law enforcement and government agency that formally participated in the criminal investigation, including but not limited to the: Department of Justice; Food and Drug Administration; Federal Bureau of Investigation; U.S. Postal Inspection Service; U.S Department of Veterans Affairs; Office of the Inspector General; Drug Enforcement Administration; Department of State; Department of Defense; Department of Health and Human Services; all State Boards of Pharmacy; the Massachusetts Department of Health; and the Michigan Attorney General's Office.” Docket No. 231 at 5-6. In response, the government stated that “[t]he agencies formally participating in the criminal investigation are the Department of Justice; the Federal Bureau of Investigation; the Food and Drug Administration, Office of Criminal Investigations; the Department of Veterans Affairs, Office of Inspector General, Criminal Investigations Division; the Department of Defense, Defense Criminal Investigative Service; and the United States Postal Inspection Service.” Id. Defendants focus their motion on the DPH and the Michigan AG. Docket No. 231 at 8. While they also mention the DEA, the Department of State, and the Department of Health and Human Services, see id., they have not developed their arguments with respect to these three agencies. See Redondo-Borges v. United States Dep't of Housing and Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005) (citation omitted) (“Few principles are more sacrosanct in this circuit than the principle that ‘issues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ”). In any event, the Court also declines to grant the request based on the reasons stated above. [4] But see United States v. Gupta, 848 F. Supp. 2d 491, 495 (S.D.N.Y. 2012). In Gupta, the court found an obligation to turn over interview notes containing discoverable information in the possession of the SEC even though there was no joint prosecution per se. The court focused on joint fact-gathering. However, the court limited the discovery to the production of Brady material in the notes of joint interviews. In this case, the government represented that the Michigan AG officials did not take any notes during the interviews. Docket No. 237 at 11, n. 12. [5] The Defendants cite to United States v. Briggs, No. 10CR184S, 2011 WL 4017886, at *8 (W.D.N.Y. Sept. 8, 2011) to support their request. Docket No. 231 at 21. However, this case does not support Defendants' request for more than the government has already provided. There, the court ordered the government to produce its disclosure in searchable format or in the native format, indicating the manner of the production. Briggs, 2011 WL 4017886, at *8. The Defendants have conceded that the government produced the discovery here in the same manner as ordered in Briggs. In other words, the government has produced the information in a searchable format or in its native format. Docket No. 231 at 20. [6] Metadata is almost always work product. See Wirth, 2012 WL 1110540, at *4 (“Metadata, almost by definition, shows the mental processes of the drafter of a document by revealing the drafter's drafting decision and steps.”). The Court declines to order the production of metadata based on the record before it.