The U.S. Court of Appeals for the Sixth Circuit reviews a district court's admission or exclusion of evidence for an abuse of discretion. At the same time, in reviewing a trial court's evidentiary determinations, the Sixth Circuit reviews de novo the district court's conclusions of law and reviews for clear error the district court's factual determinations that underpin its legal conclusions. These standards are not in fact inconsistent, because it is an abuse of discretion to make errors of law or clear errors of factual determination.
Defendant-Appellee Albert Ganier, III ("Ganier") was Chief Executive Officer, Chairman of the Board, a shareholder, and a founder of Education Networks of America, Inc. ("ENA") and its predecessor companies. A television station broadcast news stories discussing alleged relationships between Ganier, certain high-ranking Tennessee officials, and John Stamps, a lobbyist for ENA. The news stories included allegations of improprieties and favoritism in connection with contracts awarded to ENA by the State of Tennessee and solicitations of Tennessee and Texas officials for additional contracts. After a grand jury issued subpoenas on various companies and state agencies, Ganier allegedly attempted to implement an email "retention" policy at ENA in which employees' emails would be set to delete after six months, deleted files relevant to the ongoing investigation from his laptop computer, desktop computer, and from an ENA employee's computer. Ganier was ultimately indicted on one count of endeavoring to obstruct justice and three counts of altering, destroying, or concealing documents with intent to impede a federal investigation, and the case proceeded towards trial. As ordered by the district court, Ganier filed a summary of expected expert testimony in which he indicated that he would offer evidence that the files in question were transferred to the recycle bin rather than deleted, and that approximately 225 duplicates and similar drafts of the allegedly deleted documents remained on the computers. According to the government, its forensic computer specialist decided to use forensic software to determine what searches were run on the three computers. It was determined from reports generated by the forensic software that searches had been run using search terms relevant to the grand jury investigation and the allegedly deleted files. Ganier filed a motion to exclude the reports and related testimony because it did not provide a written summary of the proposed testimony of the forensic computer specialist as was allegedly required by Fed. R. Crim. P. 16(a)(1)(G). The district court granted Ganier’s motion. The government timely appealed.
Did the district court err in granting Ganier’s motion to exclude the reports and related testimony of the Government’s forensic computer specialist, on the ground that the Government did not provide a written summary of the specialist’s proposed testimony?
Although the district court did not err by concluding that the proposed testimony could be offered only pursuant to Fed. R. Evid. 702 and, accordingly, that the Government violated Fed. R. Crim. P. 16(a)(1)(G) by not providing a written summary of the testimony to defendant, the federal court of appeals vacated the district court's decision as the record did not reflect whether the district court considered the reasons for the Government's delay, the degree of prejudice to defendant, or whether a less severe sanction was appropriate.