THIS MATTER is before the Court on the Defendant’s Motion to Compel Discovery filed January 3, 2019. The Defendant is represented by James Moore, Esq. The Tribe is represented by Prosecutors Cody White, Shelli Buckner, and Justin Eason.

BACKGROUND

The Defendant was named in a Sealed Criminal Complaint filed September 20, 2018. On September 26, 2018, the Defendant was arrested, following which the Complaint was unsealed. The Complaint alleges that on April 5, 2018, the Defendant unlawfully sold six zip lock baggies which contained suspected heroin. In the natural course of proceedings in this matter, the Tribe disclosed or made available evidentiary materials to defense counsel (commonly referred to as providing “discovery”). Pertinent to the Defendant’s present motion are two pieces of such evidence: a partially redacted DEA form 6, Report of Investigation, prepared April 6, 2018, and a DVD-R disc containing what the Tribe asserts is the audio and video recordings made on April 5, 2018, of the Defendant conducting a hand-to-hand sale of heroin to a confidential source (herein “CS”) working at the behest of law enforcement.

In her motion, the Defendant argues that the Tribe should be compelled to provide to her the five[1] following things: (1) the identity of the CS and any other information known to Tribal Prosecutors and relevant law enforcement that goes to the credibility of the CS; (2) Facebook screen shots of the arrangements to meet with the Defendant; (3) any conversations and agreements made between the law enforcement officers and the CS regarding the CS’s cooperation; (4) a copy of the DVD-R disc recording of the controlled buy; and (5) the unredacted pages of the DEA form 6 report. The Tribe objects to the Defendant’s various requests in its written response filed January 25, 2019. The Court convened a hearing to receive evidence to resolve the parties' discovery dispute.

EVIDENTIARY HEARING

On March 13, 2019, the Court took testimony and evidence from three witnesses. The first person called to the stand was Billy Stites, Special Agent with the Bureau of Indian Affairs and task force officer with the Drug Enforcement Administration. Stites testified that he and two other officers, John Journeycake and Cody McKinney, were the three officers present who witnessed, to varying degrees, the events that occurred involving the Defendant and the CS on April 5, 2018.

Pertinent to the issues at bar, Stites testified to the following facts: Stites began working with the CS in other undercover *433 situations approximately one month before the April 5, 2018, incident involving the Defendant. Prior to April 5, 2018, Stites and the CS entered into a written work agreement that bound the CS to follow certain explicit rules, one of which, for example, was a prohibition of the CS to sell any drugs without prior permission from law enforcement. The CS was typically compensated in money by Stites upon the “receipt of tangible evidence,” meaning the delivery to Stites of illegal drugs the CS had obtained pursuant to a controlled buy. At the time the CS began working with Stites, the CS did not have any pending federal criminal charges but was likely facing criminal charges elsewhere. Stites had no contact, however, with any prosecutors who had active cases against the CS.

As it relates to the events leading to the Defendant’s arrest in this matter, Stites testified that the CS was given permission to set up a drug transaction with the Defendant for April 5, 2018. Stites learned that the CS made contact with the Defendant by Facebook approximately 1-2 hours before the controlled buy occurred. Stites was not present when the CS made Facebook contact with the Defendant and had no knowledge of what actual conversation, verbal or written, took place between the CS and the Defendant during the Facebook exchange. Stites testified that the controlled buy involving the Defendant took place at approximately 1:00 p.m. on April 5, 2018, at the residence located 190 Dave Cucumber Road, Cherokee, North Carolina. Prior to this transaction, Stites observed the CS being searched by Officer McKinney, with negative results, and then was given $100 in U.S. currency by Officer Journeycake. Stites then placed an audio/video recording device and transmitter on the person of the CS to record the transaction and also to provide a real-time audio feed to Stites' cell phone. Stites testified that he, McKinney, and Journeycake set up surveillance across the road from the 190 Dave Cucumber Road residence. The CS drove to that residence in a rental vehicle previously searched by law enforcement. Stites testified that he maintained constant visual (via binoculars) and electronic (via audio transmitter) contact with the CS as the CS conducted the controlled buy of narcotics from the Defendant. Stites testified that the CS was directed to purchase “three points” of heroin from the Defendant for $100. Following the transaction, the CS met with the officers whereupon the CS surrendered the drugs to Stites. Stites then observed the CS being searched by Officer McKinney again, with negative results. Stites maintained possession of the drugs until he could log them into the evidence room at the Cherokee Indian Police Department. Stites testified that the audio and video data recorded on the DVD-R disc accurately depicts what he saw and heard transpire between the CS and the Defendant at the residence located at 190 Dave Cucumber Road on April 5, 2018.

During the hearing, the Defendant questioned Stites about the identity of CS. Stites testified that such information was confidential because the CS was presently assisting law enforcement and any revelation of the CS’s identification information would pose a risk of retaliation to the CS for past work performed, as well as ruin the CS’s ability to work with law enforcement now or in the future. The Defendant offered into evidence Defendant’s Exhibit 1, a partially redacted DEA form 6, Report of Investigation, prepared April 6, 2018. Stites testified that he prepared such report. When asked by the Defendant why portions of the form were redacted, Stites replied that DEA policy dictated the redactions. Stites stated, however, that he had shown defense counsel a copy of the unredacted form prior to the hearing. The *434 Court requested the Tribe provide it with an unredacted version of Defendant’s Exhibit 1, as well as a copy of the DVD-R disc described by Stites for in camera review. The Tribe provided such evidence to the Court and the Court placed the two items under seal as a part of the record in this matter.

Next to testify was Cody McKinney, a Cherokee Indian Police Detective and DEA task force officer. McKinney testified that his role, during the events of April 5, 2018, was to search the CS, as well as to search the rental vehicle to be driven by the CS. McKinney testified that, before and after the controlled buy that day, he conducted an “outer clothing” search of the CS as well as a search of the CS’s shoes and socks. McKinney testified that these searches revealed no contraband. McKinney also testified that he searched the Enterprise Rental vehicle before the CS drove it to meet with the Defendant. The search of the vehicle likewise revealed no contraband. Finally, McKinney testified that he could not see the transaction take place between the CS and the Defendant because he was sitting in the back seat of the officers' surveillance vehicle. He did testify, however, that he could hear the dialogue that took place during the transaction as it was being transmitted to Stites' cell phone. McKinney testified that the audio data recorded on the DVD-R disc accurately depicts what he heard transpire between the CS and the Defendant at the residence located at 190 Dave Cucumber Road on April 5, 2018.

The last witness to testify was John Journeycake, Special Agent with the Bureau of Indian Affairs and task force officer with the Drug Enforcement Administration stationed in Oklahoma. Journeycake testified that he was sent from Oklahoma on a two-week detail to assist Stites' drug investigation in North Carolina in April, 2018. Journeycake testified that the CS was used in an undercover capacity both before and after his/her role in the events that occurred April 5, 2018, involving the Defendant. Journeycake testified that he was present with the other two officers during the controlled buy made by the CS from the Defendant. Journeycake testified that he did not assist with the search of the CS or of the rental vehicle but that he did observe McKinney’s search of the vehicle. Like McKinney, Journeycake testified that he could not see the transaction take place between the CS and the Defendant. Also like McKinney, however, Journeycake did testify that he could hear the dialogue that took place during the transaction as it was being transmitted to Stites' cell phone. Journeycake testified that the audio data recorded on the DVD-R disc accurately depicts what he heard transpire between the CS and the Defendant at the residence located at 190 Dave Cucumber Road on April 5, 2018.

DISCUSSION

Rather than address the Defendant’s evidentiary disclosure requests in the order she has presented them, the Court will resolve them based upon the degree of analysis necessary, beginning with the least complicated.

[1] [2]The Defendant’s second and fifth requests need little discussion. The Defendant’s second request for any Facebook screen shots of the arrangements the CS made to meet with the Defendant should be denied, not because the request is without merit but because the Tribe does not possess such evidence if it even exists. Stites testified that he learned the CS made contact with the Defendant by Facebook approximately 1-2 hours before the April 5th controlled buy. More importantly, Stites testified that he was not present *435 when the CS made Facebook contact with the Defendant and had no knowledge of what actual conversation, verbal or written, took place between the CS and the Defendant during the Facebook exchange. Given these circumstances, and without any allegations by the Defendant that the CS engaged in any fraudulent or deceptive behavior during the Facebook exchange, this second request will be denied. The Defendant’s fifth request for the unredacted pages of the DEA form 6 report should be allowed. The Court has examined the unredacted pages of the DEA form 6 report in camera and finds nothing confidential in the redacted material. This comes as no surprise since Stites testified that he had shown defense counsel the entire unredacted report prior to the evidentiary hearing. Given this action by the Tribe, any claim of privilege has been waived and this fifth request will be granted.

[3]Turning next to the Defendant’s fourth request, that her attorney be given a copy of the DVD-R disc recording of the controlled buy, this request should be granted, but upon certain conditions. Due to the unique facts presented in this case, the Court must balance the parties' competing interests against the operative Cherokee Code provisions that seemingly mandate conflicting directives. On the one hand, C.C. § 15-6(b)(1)(ii) requires the Tribe to divulge, “in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, ... except that disclosure of such a statement is not required if it was made to an informant whose identity is a prosecution secret and who will not testify for the prosecution, and if the statement is not exculpatory.” Id., (emphasis added). On the other hand, C.C. § 15-6(b)(4) requires the Court to order “the prosecutor to permit the defendant to inspect and copy ... motion pictures, ... or electronic recordings, ... which are material to the preparation of his defense, [or] are intended for use by the Tribe as evidence at the trial[.]” Id., (emphasis added).

The Tribe seeks to keep the identity of the CS under wraps at this time, for the reasons stated above, and with regard to the highlighted portion of § 15-6(b)(1)(ii), presumably because the CS would not be called to testify at the Defendant’s trial. Further, while the Court has reviewed the DVD-R disc in camera, defense counsel has not reviewed it at all.[2] Accordingly, nothing appears of record indicating one way or another whether any of the statements made by the Defendant on the disc could be characterized as exculpatory, or pursuant to the highlighted portions of C.C. § 15-6(b)(4), as material to the preparation of her defense. The Court is thus left with the assumptive likelihood that the Tribe would attempt to introduce into evidence the activity portrayed on the disc at the Defendant’s trial. If so, the Defendant would be entitled to a copy of the disc to review in preparation for trial under the last phrase of § 15-6(b)(4). For these reasons, the Defendant’s fourth request for a copy of the DVD-R disc will be allowed on the conditions that defense counsel: (A) be permitted to possess the disc only to play its contents for the Defendant in jail so that he may fulfill his ethical responsibility *436 to zealously represent his client; but (B) not be permitted to disseminate or show the contents thereof to any other person.

[4]The last two requests made by the Defendant for (1) the identity of the CS and any other information known to Tribal Prosecutors and relevant law enforcement that goes to the credibility of the CS, and (3) any conversations and agreements made between the law enforcement officers and the CS regarding the CS’s cooperation, should be held in abeyance until further order of the Court. The Court has reviewed the parties' briefs and pertinent caselaw and concludes that a definitive ruling on these remaining two issues would amount to an improper advisory opinion and may otherwise be unnecessary. Having reviewed the DVD-R disc in camera, the Court notes that there exist many telltale signs that would lead the Defendant to recognize the identity of CS immediately when shown the disc by her attorney. It is clear from the recording that the Defendant and the CS are no strangers. If, after the Defendant has been shown what is portrayed on the DVD-R disc, she believes there exist facts which merit a renewal of her first and third evidentiary requests, she may amend her motion to compel to so specify and include therein citation to authority which supports her renewed requests. In the interim, the Court will suspend any ruling on the Defendant’s first and third requests.

ORDER

NOW, THEREFORE, based upon the foregoing, it is hereby ORDERED that the Defendant’s Motion to Compel Discovery is GRANTED as to her fourth and fifth requests as set forth above, is DENIED as to her second request, and is HELD IN ABEYANCE as to her first and third requests.

The Defendant’s motion listed a sixth item, to wit: the “[c]hain of custody of the alleged controlled substance from the time CS came into control of the substance until it was tested by a laboratory.” At the evidentiary hearing, the Tribe provided defense counsel with documentation responsive to this request. The Defendant stated that such material appeared to satisfy her request but reserved the right, upon further inspection, to challenge the documentation.

The Tribe made the DVD-R disc available for defense counsel to review in the prosecutor’s office following the Defendant’s arrest. Even though the Defendant could not accompany her attorney to view the disc because she was in custody, defense counsel could have viewed it. In the future, defense counsel should review all evidence available before filing a motion to compel discovery.