United States of America v. Malik
MEMORANDUM AND ORDER denying 132 Defendant Malik's Motion to Enforce or Clarify the Court's Order Compelling Production of Documents and ESI. Signed by Magistrate Judge Teresa J. James on 9/29/2017. (byk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
AFAQ AHMED MALIK,
Case No. 15-cv-9092-CM-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Malik’s Motion to Enforce or Clarify the
Court’s Order Compelling Production of Documents and ESI (ECF No. 132). Malik requests the
Court enforce or clarify its prior September 7, 2017 Memorandum and Order (ECF No. 130)
(“the Order”) by requiring the Government to produce additional documents and information that
Malik argues should have been produced pursuant to that Order. Malik specifically requests that
the Court order the Government to produce: (1) an unredacted copy of the September 8, 2016
email message from Albert Briseno (“Briseno”) to Reuben Gomez (the “Briseno email”); (2) two
database entries related to the investigation of Malik as described by Investigative Assistant
Noor Mehmand (“Mehmand”) in his March 3, 2016 and September 26, 2016 emails; and (3)
other relevant and responsive information contained in the Government’s database systems. The
Government argues the redacted paragraph in the Briseno email was not responsive and the
information referenced in the Mehmand emails has already been produced. For the reasons
discussed below, Malik’s motion is denied.
Unredacted Copy of September 8, 2016 Briseno Email
Malik first raises an issue with the Government’s redaction of the September 8, 2016
Briseno email it produced pursuant to the Court’s Order. He points out that the Court’s Order
directed the Government to produce responsive documents and found the Government had
waived any privilege or protections with respect to those documents. Malik asserts the Court
should order the Government to produce an unredacted copy of the Briseno email because the
subject line of the email shows it clearly relates to Malik and the Government has not claimed
any privilege or protection applies.
On September 18, 2017, the Court ordered the Government to submit an unredacted copy
of the Briseno email for an in camera review, which the Government submitted the same day.
On September 25, 2017, the Government provided a privilege log listing the Briseno email and
asserting attorney-client privilege, attorney work product, and deliberative process privilege.
The Government also filed its response, in which it states it redacted a single paragraph of the
Briseno email because the paragraph was non-responsive and privileged. It further explains the
redacted information relates to “internal government deliberations about a settlement proposal by
[Malik] on September 2, 2016.”1
The Court has reviewed the unredacted email in camera and finds the Government has
accurately described the redacted information as relating to the Government’s internal
discussions regarding case settlement efforts. The Court agrees with the Government that this
paragraph is not responsive to Malik’s First Request No. 5 and is appropriately redacted as nonresponsive. Malik’s request for an order requiring the Government to produce an unredacted
version of the Briseno email is denied.
Pl.’s Resp. at 4, ECF No. 140.
Database Entry Referenced in the March 3, 2016 Mehmand Email
Malik next requests that the Government be ordered to produce two database entries
mentioned in emails sent by Mehmand on March 3, 2016 and September 26, 2016. Malik argues
that the March 3, 2016 Mehmand email refers to an “opening case summary in TECS.”2 Malik
argues this email reveals that the Government was using the TECS database to store information,
documents and ESI, and communications related to the Malik investigation. However, the
Government has not revealed on any privilege log or produced to date any entry or document
from the TECS database. Therefore, Malik argues the Government should be required at a
minimum to produce this “opening case summary” described in the email, along with any other
entry, document, communication, or other ESI about Malik in the TECS database.
The Government explains that the TECS system was transitioned to ICM in June 2016
and all of the information in the TECS database is contained in the ICM database. The
Government also states in its Response that it has produced the information referenced in the
Mehmand emails, and “[w]hat is contained in TECS is the same information that is contained in
the March 3, 2016 e-mail message.”3 In support of its argument, the Government attaches the
Affidavit from Mehmand, in which he states:
On March 3, 2016, after receiving approval, I upload the opening case summary
in TECS. At the time, our office used the case management module in TECS to
track investigations. Sometime later, we transitioned to Investigative Case
Management ("ICM"). All of the information contained in TECS related to case
number PZ 1 7H416KCOOO I is contained in Investigative Case Management. I
Email, ECF No. 134-2. Malik describes the TECS database as “the updated and modified
version of the former Treasury Enforcement Communications System” which is now “owned and
managed by the U.S. Department of Homeland Security’s (DHS) component U.S. Customs and Border
Protection (CBP).” Malik Mem. in Supp. at 4, ECF No. 133.
Resp. at 6, ECF No. 140.
have attached a copy of the opening case summary report of investigation from
The “opening case summary” report attached to the Mehmand Affidavit is a two-page
Report of Investigation with a March 13, 2016 “Date Approved.” The first full paragraph in both
the Synopsis and Details of Investigation sections are identical to the first paragraphs of both the
September 20, 2016 Interim Report (USA002341-USA002343) and October 24, 2016 Final
Report (USA002345-USA002346) previously produced by the Government (and discussed
extensively in the Court’s Order). The “opening case summary” report attached to the Affidavit,
however, has additional paragraphs discussing events on March 3, 2016 that are not in the
Interim and Final Reports. The Government acknowledges in footnote 9 of its Response that this
Report includes two additional paragraphs, noting the date Mehmand received the purported
Pakistani divorce decree and the prospective investigative step to be taken to complete the
document verification. The Government states it already produced documents that included this
information, referencing an email from Briseno to Mehmand the Government produced on
September 13, 2017 and the Interim Report produced on November 30, 2016. Regardless of
whether the Government has previously provided this information, the Court finds there is no
materially significant new information included in those paragraphs.
The Government has explained the TECS system transitioned to ICM in June 2016 and
all of the information in the TECS database is contained in the ICM database. The Government
also produced the “opening case summary” report from the ICM to Malik on September 25,
2017. While the Government does not explain why the ICM “opening case summary” report was
not produced earlier, the Government has finally produced what Malik requests in his motion.
Mehmand Aff. ¶ 3, ECF No. 140-1.
The Court therefore denies Malik’s motion to the extent it requests production of the “opening
case summary” referenced in the March 3, 2016 Mehmand email.
Database Entry Referenced in the September 26, 2016 Mehmand Email
Malik also claims the September 26, 2016 Mehmand email references a closing Report of
Investigation (“Closing ROI”) as being input into the ICM database.5 Malik contends this
information is responsive to his Request No. 5 and the Government has not asserted any
privilege with respect to the Closing ROI so the Government should be ordered to produce it.
The Government states it already produced the Closing ROI referenced in Mehmand’s
September 26, 2016 email on May 25, 2017 and then refers to the same Bates Stamp number for
the Final Report (USA002345-USA002346). The Court concludes from this statement that the
Closing ROI referenced in Mehmand’s September 26, 2016 email and the Final Report
previously produced on May 25 2017 are in fact the same document. Accordingly, as the
Government has already produced the Closing ROI referenced in the September 26, 2016
Mehmand email, Malik’s motion requesting production of the Closing ROI is denied.
Other information contained in certain government information systems
Malik also requests the Government produce “[a]ny other entry, document,
communication, or other ESI” about Malik in the TECS and ICM database or any other federal
database related to the fraud investigation. Malik argues that the Mehmand emails raise the
question of whether other database entries have not been produced by the Government.
Sept. 26, 2016 Mehmand Email, ECF No. 134-3.
The Government affirmatively states it has “produced all of the information contained in
TECS and ICM related to case number PZ17H416KC0001.”6 It further states that on September
13, 2017, it produced the opening case summary (USA002371), which Mehmand had entered
into the case management module in TECS, which was later transitioned to ICM. And on
November 30, 2016 and May 24, 2017, the Government produced the Interim Report
(USA002341-USA002343), and the Final Report (USA002345-USA002346), which Mehmand
had entered into the same information system. Mehmand’s Affidavit confirms that he “reviewed
the copies of reports of investigation previously produced to Defendant [Malik]: [Interim Report]
USA00234 l-USA002343 and [Final Report] USA002345-USA002346. The reports of
investigation contain all of the information [he] uploaded in ICM.”7
Based upon the Government’s representations, the Court concludes the Government has
produced all information or documents responsive to Malik’s Request No. 5, and there is nothing
further for the Government to produce. The Court therefore denies Malik’s request for an order
compelling the Government to produce any other information contained in TECS, ICM, or other
federal databases related to the Government’s fraud investigation of Malik.
IT IS THEREFORE ORDERED THAT Malik’s Motion to Enforce or Clarify the
Court’s Order Compelling Production of Documents and ESI (ECF No. 132) is denied.
In footnote 10 of its Response, the Government states that it holds a single report of
investigation related to a different case number, KC17H416KC0001. The Government explains the
report of investigation is the “collateral request” referred to by Briseno in his February 25, 2016 email
(USA002369). The Government states it produced an unredacted copy of this record to Malik on
September 25, 2017.
Mehmand Aff. ¶ 5.
IT IS SO OR
Dated this 29th day of September 201 at Kansa City, Kans
Teres a J. James
U. S. Magistrate J
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