United States v. Bergonzi - 216 F.R.D. 487 (N.D. Cal. 2003)

Rule:

In the context of Fed. R. Crim. P. 16, the materiality requirement is not a heavy burden; rather, evidence is material as long as there is a strong indication that the evidence will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal. Requests which are designed to generally cast for impeachment material are not material. Such requests are instead simply speculative inquiries without basis in fact to believe that the information acquired will be significantly helpful.

Facts:

A grand jury returned an indictment charging defendants with 17 counts of securities, and mail and wire fraud. Defendants filed a motion to produce materials provided to plaintiff United States pursuant to agreements filed by both defendants. The nonparty sought to intervene on grounds that the documents sought by defendants were privileged. The motion was not opposed by the government or either defendant. Defendants sought production of a report and back-up materials, including the interview memoranda. Defendants sought production of the Report and Back-up Materials, including the Interview Memoranda. Defendants argued that the nonparty waived any claim of privilege by producing the material to the Government. They contended that the Government’s subsequent production of the documents to defendants effected a waiver of any applicable privileges. Defendants further contended that they were entitled to the documents under Rule 16 and Brady. Defendants claimed that the entitlement would exist even if the Court found that the privilege attached.

Issue:

1. Should the nonparty be allowed to intervene?
2. Under the circumstances, were the defendants entitled to the documents sought?

Answer:

1) Yes. 2) Yes.

Conclusion:

The Court noted that third parties may intervene in a criminal trial to challenge the production of subpoenaed documents on the ground of privilege. In this case, the nonparty was challenging the production of the Report and Back-up Materials sought by the defendants in the instant criminal action on grounds that production of the documents was precluded by its claim of attorney-client privilege and work production protection. Because the privilege belonged to the nonparty, intervention was appropriate. Moreover, the parties to the criminal action did not oppose the intervention. Anent the second issue, the Court held that the defendants successfully demonstrated that they were entitled to discovery of both the interview memoranda and report from the government. The Court reasoned that the discovery would play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal. Accordingly, the nonparty's motion to intervene was granted. Defendants' motion for production was conditionally granted.