On August 3, 2021, Defendant Julian Omidi filed a motion to compel the Government to specifically identify Brady material of which it has become aware during the course of its discovery production. [Doc. # 1154.] On August 17, 2021, the Government filed its opposition [Doc. # 1231], and on August 24, 2021, Defendant Omidi filed his reply [Doc. # 1265]. A videoconference hearing was held on September 1, 2021. Having carefully considered the arguments set forth in the parties' briefs, the Court GRANTS Defendant Omidi's motion.

As both sides acknowledge, there has been a voluminous amount of discovery in this case. The Court issued a Complex Case Management Order on March 6, 2018 which outlined, among other things, the Government's discovery obligations. [Doc. # 52.] The Government represents that by April 2018, it had already produced most of its discovery (including documents seized from the June 2014 warrants; reports of witness interviews; grand jury exhibits; grand jury transcripts for numerous witnesses; and nearly a million pages of emails produced by Defendant Surgery Center Management, LLC (“SCM”)). [Doc. # 137 (Government's First Status Report) at 12-14[1].] The Government continued to make smaller rolling productions of items as detailed in its status reports. [See, e.g., Doc. # 255 (Second Status Report) at 5-6; 536 (Third Status Report) at 4-5; 562 (Fourth Status Report) at 4-5; 612 (Fifth Status Report) at 5-6; 624 (Sixth Status Report) at 5-6.] The Government represents that the majority of documents produced relate to Defendant Omidi and the GET THIN entities, either through the seizure warrants or through SCM's production on behalf of various GET THIN entities. Defendant Omidi estimates that the Prosecution Team has produced at least 1.7 million documents and the Filter/Taint Team has produced nearly 300,000 documents. [Doc. # 1154 at 8.] The Government does not dispute these figures. After Defendant Omidi retained his current counsel in December 2020, the Government re-produced discovery that Defendant Omidi's counsel represented that they did not have. [Doc. # 958 at 4.] At various points, Defendant Omidi's current counsel has indicated an inability to effectively search and/or utilize some of the Government's discovery [see, e.g., Doc. # 1041 (Order re ESI Discovery) at 2-3], although Defendant Zarrabi's counsel does not appear to have encountered similar issues [see, e.g., Doc. # 466 (Feb. 28, 2019 Hearing Tr.) at 42].

The seminal case of Brady v. Maryland requires that the Government disclose all evidence favorable to the accused where the evidence is material either to guilt or punishment. 373 U.S. 83, 87 (1963). As the Supreme Court has subsequently explained, “[t]he Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial[.]” United States v. Bagley, 473 U.S. 667, 675 (1985) (footnotes omitted). Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. Id. at 676 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). “Such evidence is ‘evidence favorable to an accused,’ so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.” Id. (quoting Brady, 373 U.S. at 87).

Although not squarely addressed by the Supreme Court or the Ninth Circuit, some district courts have held that in certain circumstances involving voluminous discovery, the Government should be required to specifically identify Brady material known to it, in order to ensure that such material is not missed by the defendant. See United States v. Hsia, 24 F. Supp. 2d 14, 29-30 (D.D.C. 1998) (holding that “[t]o the extent that the government knows of any documents or statements that constitute Brady material, it must identify that material to [the defendant]” and explaining that “[t]he government cannot meet its Brady obligations by providing [the defendant] with access to 600,000 documents and then claiming that [the defendant] should have been able to find the exculpatory information in the haystack.”); United States v. Salyer, No. CR. S-10-0061, 2010 WL 3036444 (E.D. Cal. Aug. 2, 2010) (affirming discovery order tasking government with identifying Brady/Giglio information in its millions of pages of discovery and noting, among other things, that the government's argument “on the burden of requiring Brady/Giglio identification in the voluminous documents case actually is the argument which conclusively proves [defendant's] point in this case.”); United States v. Saffarinia, 424 F. Supp. 3d 46, 85 (D.D.C. 2020) (ordering government to identify Brady material known to it in 3.5 million pages of documents produced).

It is important to note at the outset what this motion is not. Defendant Omidi does not contend that the Government has failed to disclose Brady material or that the Government has failed to meet its discovery obligations as set forth in the Court's Complex Case Management Order.[2] Rather, “all Mr. Omidi asks of the Government is an identification of Brady material now known to it.” [Doc. # 1154 at 12.] Given the record in this case and particularly in light of the enormous amount of discovery at issue, the Court finds that Defendant Omidi's request is reasonable.

The Government is correct that the facts in this case are somewhat distinguishable from Saffarinia and Salyer, which both involved counsel with limited resources, one defendant (Salyer) who was in custody pending trial, and no parallel civil litigation from which defendants could obtain voluntary corporate assistance. See Saffarinia, 424 F. Supp. 3d at 88; Salyer, 2010 WL 3036444, at *7. While it cannot reasonably be disputed that Defendant Omidi's counsel are well-resourced, Defendant Omidi is not detained pending trial, and there have been several related civil cases where Defendant Omidi has likely been able to receive and review relevant documents (see, e.g., Almont Ambulatory Surgery Center, LLC, et al., v. Unitedhealth Group., Inc., et al., CV 14-3053-MWF (AFMx)), the Court finds that the dispositive factor here is simply the sheer volume of discovery. Like in Salyer and Saffarinia, the Government has had the benefit of several prosecutors and federal agents reviewing the material on a rolling basis over the course of its years-long investigation into Defendant Omidi, his associates, and the GET THIN network. See Saffarinia, 424 F. Supp. 3d at 88; Salyer, 2010 WL 3036444, at *3-5. Given that “[t]he government has an affirmative duty to disclose Brady material, it has presumably reviewed the discovery in this case, and ‘the prosecution knows, as any litigator would know, what evidence, on its face, significantly detracts from the factual elements which must be proven in a particular case.’ ” Saffarinia, 424 F. Supp. 3d at 88 (quoting Salyer, 2010 WL 3036444, at *5).

Defense counsel's repeated representations of difficulties searching the Government's electronic discovery also weigh in favor of granting the request. See United States v. Cutting, 14-cr-139-SI-1, 2017 WL 132403, at *10 (N.D. Cal. Jan. 12, 2017) (ordering government to identify Brady material in 3.3 million page discovery production, noting, among other things, that “[i]n this case, the government's production has not only been voluminous, but its electronic production has been marred by technical problems that seriously impede defendants' ability to search the ESI.”). The Government relies on Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011), to contend that “there is no authority for the proposition that the government's Brady obligations require it to point the defense to specific documents within a larger mass of material that it has already turned over[.]” Id. at 1039 n.12. While this general statement may be true, Rhoades is distinguishable. There, the Ninth Circuit simply declined the defendant's request that the government “single out” a particular segment of a disclosed videotape in order to comply with its Brady obligations. See id. at 1039. There is no indication that Rhoades involved anything near the enormous volume of discovery in this case. In short, as a matter of fairness, the Court concludes that it is reasonable to order the Government, to the extent that it has become aware of Brady material during its review of the produced discovery, to specifically identify that material for Defendant Omidi.[3]

For the reasons set forth above, Defendant Omidi's motion to compel the Government to specifically identify Brady material of which it is aware is GRANTED. The Government shall provide Defendant Omidi, as well as Defendants Zarrabi and SCM, with such information, if any, specifically identifying Brady material in its produced discovery (i.e., with reference to Bates number or any other information that may be used to reasonably facilitate identification) by no later than September 10, 2021.

IT IS SO ORDERED.

Page references herein are to the page numbers inserted by the CM/ECF system.

Defendant Omidi does not dispute the Government's representation that it has provided him with: its discovery in electronic, generally text-searchable format; a discovery log that identifies, where possible, documents on a file-by-file basis; “hot docs” that the Government used in its presentation to the grand jury, including the grand jury transcripts themselves that outline the Government's case; and preliminary trial exhibit and witness lists, which were produced well in advance of the trial date.

To be clear, the Court does not intend this Order to impose additional obligations or burdens on the Government beyond simply identifying Brady material of which it has become aware during its review of produced discovery. That is, absent any specific, concrete evidence that the Government has committed some wrongdoing (which has not been alleged here), Defendant Omidi may not rely on this Order as a basis to seek sanctions or other relief against the Government for unintentionally failing to identify every conceivable piece of perceived Brady material contained in the millions of documents it produced in discovery.