Mcintosh v. Holder et al

Filing 198

ORDER RE DISCOVERY REQUESTS FOR UNDERCOVER OPERATION FILES, AGENT NOTES, AND WITNESS SECURITY INFORMATION by Judge Charles R. Breyer. (crblc1S, COURT STAFF) (Filed on 3/1/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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RONALD J. MCINTOSH,

Plaintiff,

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No. C09-00750 CRB
ORDER RE DISCOVERY REQUESTS
FOR UNDERCOVER OPERATION
FILES, AGENT NOTES, AND
WITNESS SECURITY
INFORMATION

v.
ERIC H. HOLDER JR.,
Defendant.

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Now before the Court is McIntosh’s request for additional discovery related to a

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certain undercover operation in Philadelphia, particular agent notes, and particular witness

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security information. See Sealed Motion and Declarations (dkt. 192). The Court previously

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ordered the FBI and United States Marshals Service (“USMS”) to submit detailed

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declarations explaining their efforts to comply with McIntosh’s previous discovery requests.

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See Discovery Orders (dkts. 187 and 190). The FBI and USMS have submitted the requested

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declarations. See Sealed Declarations (dkt. 197).

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McIntosh again requests additional discovery. See Sealed Motion (dkt. 192). First, he

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argues that the USMS disregarded the Court’s subpoena as it related to one category of

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information. See Sealed Declaration (dkt. 195-3) ¶ 10(a); Sealed Declaration (dkt. 192-4).

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The USMS requested clarification on the scope of the subpoena, misunderstanding that the

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sections immediately following the disputed language provided the requested level of
specificity. See generally id. ¶ 10. Given that USMS provided responses to each of the

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detailed requests for information that followed the disputed section, the Court concludes that

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the USMS affidavit adequately responds to the Court’s prior Order. See id. ¶ 10.

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Second, McIntosh asserts that the government (a) has not reviewed the Philadelphia

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undercover operation files at issue here for Brady material, (b) has not stated whether it can

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locate a particular agent’s notes related to conversations with a certain informant, and (c) has

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withheld criminal history reports that the fall within the scope of the information that the

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Court ordered produced to McIntosh. See Sealed Declaration (dkt. 192-3) ¶ 2 & 6; Sealed

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Reply (dkt. 192-2) ¶ 4 & 7.
Upon review of the parties’ submissions and for good cause shown, the Court

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United States District Court
For the Northern District of California

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ORDERS that the government review the Philadelphia undercover file in question for Brady

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material and produce any Brady material found to McIntosh. See Sealed Declaration (dkt.

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192-3) ¶ 6. The Court further ORDERS that the FBI state by declaration whether it has

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found or whether it can find the agent’s notes requested by McIntosh, and if it has located

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those notes, the government is ORDERED to provide a reason—separate from its assessment

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of the notes’ relevance—for why the notes should not be disclosed to McIntosh. See Sealed

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Motion (dkt. 192-2) ¶ 4. Furthermore, the Court ORDERS the government to disclose the

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criminal history reports requested by McIntosh or to submit a declaration stating the

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government’s reasons—separate from its assessment of relevance—for withholding those

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reports. See Sealed Motion (dkt. 192-2) ¶ 7.

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Finally, the Court orders that counsel for McIntosh may review the one arguably

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relevant document identified in the Philadelphia undercover operation file thus far, see

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Sealed Declaration (dkt. 197-1) ¶ 12, under the terms of the same protective order that

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governed counsel’s review of the 174 pages of FBI documents discussed in this Court’s prior

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Orders, see, e.g., Order Re Requests for Clarification (dkt. 190).

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IT IS SO ORDERED.

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Dated: March 1, 2016
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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