MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S REQUEST FOR RECONSIDERATION OF RELEVANCY RULING; STRIKING DEFENDANT'S NOTICE OF FILING OF JUNE 6, 2014; DENYING AS MOOT MOTION FOR EXTENSION OF TIME (DOC. 284); and ALLOWING ADDITIONAL TIME IN WHICH TO SUBMIT A REVISED REQUEST FOR CLASSIFICATION REVIEW

WILLIAM P. JOHNSON, District Judge.

THIS MATTER comes before the Court regarding Defendant's request for classification review of documents which Defendant regards as probative and exculpatory information. The request began with Defendant's motion to compel the Government to declassify this material, and although the Court has ruled on that particular motion (Doc. 157), the issue has been ongoing for several months. This Order is intended to set forth the final parameters for Defendant to follow in resubmitting the classification request.

BACKGROUND

Some background is essential here, and is best set forth using the docket timeline: Doc. 189: Court entered Order striking Defendant's motion to compel the Government to declassify almost 35,000 documents (Doc. 157), and further requiring Defendant to identify with specificity the relevance of each of the requested documents to be declassified.

Doc. 225: Defendant submitted response to Court's order to identify requested documents to be declassified with specificity. Doc. 252: Court's Order striking Defendant's submission on the basis that much of the material for which classification review was requested was neither relevant nor was it defined with particularity, as required by the Court's previous Order. The Court also provided Defendant with additional time to provide the Court with amended submission.

Doc. 263: Defendant filed a "response" to the Court's Order striking the previous submission. In this "response," Defendant also requested the Court to reconsider its finding with regard to relevancy and that if the Court found that the material to be reviewed for classification was relevant, Defendant would be given twenty days to address the Court's specificity objections. Because Defendant had styled the pleading as a "response," the Court overlooked counsel's request for the twenty-day extension.

Doc. 280: Having realized that counsel had requested an extension of time in the "response" to the Court's Order, the Court entered an Order giving defense counsel a few days extension of time beyond the twenty-day extension requested. Under this Order, the revised submission would be due on Friday, May 30, 2014 in which time counsel was to file an amended justification for the classification review requests for specific discovery documents.

Doc. 284: Defense counsel requested an additional thirteen days, until Thursday, June 5, 2014, in which to file the submission to comport with the Court's specificity requirement for the classification review requests.

Doc. 285: The Court deferred ruling on this last request for additional time. The Court acknowledged that counsel's initial request for a twenty-day extension (Doc. 263) appeared to be conditional on the Court's reconsideration of its finding regarding relevance. See Doc. 285 at 1.1 At the same time, the Court also realized that the relevance of material concerning Defendant's prior work collaborations, which constituted a large part of the tens of thousands of documents for which classification review was requested, was a central issue in the Government's motion in limine to exclude Defendant's prior uncharged work, filed on April 14, 2014 (Doc. 235). The Court deferred ruling on Defendant's request for additional time, stating:

Doc. 285 at 2. In that Order, the Court also vacated its previous order, Doc. 280, which had granted counsel an extension of time beyond the twenty days requested.

DISCUSSION

Following a hearing, the Court recently granted the Government's motion in limine, excluding the admission of specific instances of Defendant's prior work at Sandia National Laboratories ("Sandia") (Doc. 299), filed June 26, 2014.

On June 6, 2014, Defendant filed a Notice of Filing of Defendant's Response to the Court's Orders (Docs. 252, 280 and 285) Requiring Defendant to Specify with Particularity the Documents to be Declassified and Filed Under Seal with the Classified Information Security Officer or Designee (Doc. 291). Because the Court had not reconsidered its relevancy filing for Defendant's previous submissions at the time of this filing, the filing was premature. Also, the Court had not yet ruled on the Government's motion in limine regarding Defendant's prior uncharged work, and thus Defendant would not have had the benefit of the Court's ruling on that matter in order for the substance of the June 6th filing to reflect the Court's decision.2 For this reason, the Court will not consider the material filed by Defendant in its June 6th Notice of Filing, as it most likely still includes thousands of documents relating to Defendant's prior uncharged work, and the Court STRIKES this pleading and submission.

In granting the Government's motion in limine (Doc. 235), the Court has excluded evidence of Defendant's work for Sandia that had been approved or authorized by Sandia management. This is the same kind of evidence, in part, for which Defendant has previously requested a classification review (see, e.g., Docs. 189, 225 & 252). This category of evidence is comprised of literally tens of thousands of documents, including e-mails, relating to Defendant's authorized work at CINT ("Center for Integrated Technologies") which Defendant contends are "no different" from the charged conduct, and are therefore relevant to the substantive elements in the charged criminal offenses, specifically that Defendant acted "without authority" in Counts 1 through 5. See 18 U.S.C. §666(a). Thus, the Court's recent ruling on the Government's motion in limine eliminates a huge chunk of the documents for which Defendant will be able to seek a classification review. This also means that the Court denies Defendant's motion to reconsider its ruling regarding relevancy of Defendant's prior uncharged conduct. The Court has ruled that such evidence is not relevant to the substantive law of the charged offenses, and Defendant is expected, when resubmitting the classification request, to abide by that ruling.

Defendant is hereby given TWENTY (20) DAYS from the entry of this Order to resubmit his request for classification review of documents. The submission should comply with the following:

Counsel's failure to follow all of the above may result in the Court's striking of the submission. Because jury selection is currently set for the end of November (see Doc. 268), there is no guarantee that the Court will provide any further opportunities to make corrections.

Defendant's revised submission for the classification review request is due for filing on or before twenty (20) days from the filing of this Order. Because this time period extends past the time requested by defense counsel in Doc. 284, the Court finds the request for additional time in Doc. 284 to be MOOT, and denies the motion as such.

CONCLUSION

In sum, the Court DENIES Defendant's request for reconsideration of its ruling regarding relevancy of evidence pertaining to Dr. Huang's prior uncharged work.3 The Court also STRIKES Defendant's Notice of Filing of June 6, 2014 (Doc. 291) because it was filed prior to the Court's ruling regarding evidence of Defendant's prior uncharged work.

The Court DENIES as moot Defendant's Motion for an Extension of Time (Doc. 284); and allows Defendant TWENTY (20) DAYS from the time this Order is entered in which to formally submit a revised request for classification review, which shall comply with the directions set forth in this Memorandum Opinion and Order.

SO ORDERED.