*1 Defendant Ricardo Delgado II was indicted for conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C. § 846 and 841(a)(1), possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), possession of a firearm furthering a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A), and unlawful use of a communication facility, 21 U.S.C. § 843(b). ECF No. 176.

Before this Court is his motion to compel the Government to produce pole-camera footage and redacted information. ECF No. 322. For reasons explained below, his Motion will be granted in part and denied in part.

The relevant discovery includes voluminous pole-camera footage that the Government produced to Defendant in early 2023.[1] At a status conference in February 2023, see ECF No. 272, the Parties discussed “concerns about accessing and interpreting the surveillance data,” concluding they would schedule a reverse proffer to “resolve any lingering confusion about interpretation of the surveillance data after defense counsel's initial review,” ECF No. 307 at PageID.882. The reverse proffer occurred on April 5, 2023. See ECF No. 345 at PageID.1110.

Yet on May 2, 2023, Defendant filed a “Motion to Compel Discovery in a Usable Format and to Produce Redacted Information.” ECF No. 322. He seeks an order compelling the Government to produce (1) “the pole camera footage in a usable format” and (2) “the redacted information.” Id. at PageID.987.

In criminal prosecutions, discovery follows “three governing rules.” United States v. Watson, 787 F. Supp. 2d 667, 672 (E.D. Mich. 2011). First, the Brady doctrine requires the Government to share all evidence favorable and material to the defendant's guilt or sentencing. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Second is Criminal Rule 16, calling for the Government to “disclose, upon a defendant's request,” defendant's statements, prior record, pertinent documents, and summaries of expert testimony. United States v. Mills, No. 2:16-CR-20460-1, 2019 WL 76868, at *2 (E.D. Mich. Jan. 2, 2019) (citing FED. R. CRIM. P. 16(a)). Third is the Jencks Act, which bars discovery of any “statement or report ... made by a Government witness or prospective Government witness (other than the defendant) ... until said witness has testified on direct examination in the trial of the case.” 18 U.S.C. § 3500(a). However, it does require the Government, “on motion of the defendant,” to produce “any statements” in its possession of its witnesses who testify at trial after those witnesses have testified. Id. § 3500(b).

But the Government has a “limited privilege ‘to withhold from disclosure the identity of’ ” confidential informants. United States v. Ray, 803 F.3d 244, 273 (6th Cir. 2015) (quoting Roviaro v. United States, 353 U.S. 53, 59 (1957)). This privilege is subject to “the fundamental requirements of fairness,” requiring disclosure only if “an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause.” Roviaro, 353 U.S. at 60–61. To compel such disclosure, the “defendant must provide some evidence that disclosure of the informant's identity would assist in his defense.” United States v. Ray, 803 F.3d 244, 274 (6th Cir. 2015) (citing Roviaro, 353 U.S. at 62).

*2 Defendant first seeks production of pole-camera footage under Brady and Criminal Rule 16. ECF No. 322. Although the Government previously produced the footage to Defendant on an 18-terabyte hard drive, id. at PageID.994; ECF No. 343 at PageID.1098, Defendant reports that the hard drive “remains inaccessible,” id. The Government responds that it has been working with Defendant to access the footage and that, though it cannot explain why the files are inaccessible, the hard drive might have been inadvertently damaged. ECF No. 343 at PageID.1100.

Regardless of why the footage on the hard drive is inaccessible, the Government “is prepared to provide the pole camera video to the defendant again.” Id. at PageID.1098. Therefore, Defendant's Motion to Compel will be granted as to the pole-camera footage, and the Government will be directed to produce the footage to Defendant on a new storage device by July 11, 2023.

But Defendant's Motion to Compel will be denied as to “the redacted information.” ECF No. 322 at PageID.987. For Defendant does not specify what “redacted information” he seeks. See generally ECF No. 322. Based on his reference to the Jencks Act, see id. at PageID.996–97, and the Government's response, ECF No. 343, Defendant seems to be seeking the unredacted affidavits that support the Title III applications[2] so that he can learn the identity of the confidential informants, see ECF No. 343 at PageID.1101 (noting that some names were redacted in the Title III materials “to protect the identity of confidential informants involved in the initial stages of this investigation and to protect the name of a suspect still under investigation”).

Defendant asserts that redacted information should be provided to him because Jencks Act materials may be produced before trial, “[t]he Government has not stated a valid reason or concern for withholding the redacted information,” and he “is no threat to any witnesses” because he is detained pending trial. ECF No. 322 at PageID.995–97.

But the Government contends that the people whose names are redacted in the Title III applications and affidavits will not be witnesses in its case against Defendant. ECF No. 343 at PageID.1103–04. And, the Government argues, revealing the informants' redacted names would put them in harm's way—as evidenced by an ongoing investigation into allegations that, while detained, Defendant has threatened “to have the family members and close associates of co-defendants killed to ensure co-defendants will not cooperate with the government.” Id. at PageID.1102.

Because the Government does not intend to call the people whose names are redacted as witnesses, Defendant's argument for pretrial disclosure of Jencks Act materials is not apt. Even so, Defendant has not articulated how the redacted names will materially aid his defense under Criminal Rule 16. See United States v. Ray, 803 F.3d 244, 274 (6th Cir. 2015) (“A defendant must provide some evidence that disclosure of the informant's identity would assist in his defense before disclosure will be warranted.”); United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992) (“An informant[‘s identity] must be disclosed only upon a showing by the defendant that disclosure is essential to a fair trial.”). So Defendant's Motion to Compel will be denied to the extent that it seeks to compel disclosure of the redacted names in the Title III application materials.

*3 Accordingly, it is ORDERED that Defendant Ricardo Delgado II's Motion to Compel, ECF No. 322, is GRANTED IN PART to the extent that it seeks to compel production of the pole-camera footage.

Further, it is ORDERED that Defendant Ricardo Delgado II's Motion to Compel, ECF No. 322, is DENIED IN PART to the extent that it seeks to compel production of redacted information.

Further, it is ORDERED that the Government is DIRECTED to produce all pole-camera footage to Defendant on a different storage device on or before July 11, 2023.

This is not a final order and does not close the above-captioned case.