MOTION FOR ORDER REGARDING INADVERTENTLY PRODUCED RECIPROCAL DISCOVERY; ORDER; DECLARATION OF ERIN M. SNIDER

DALE A. DROZD, District Judge.

On July 24, 2019, defense counsel produced as reciprocal discovery FD0069-FD0127, which are videos recreating Conrado Virgen Mendoza's drive from the early morning of December 26, 2019. See Declaration of Erin M. Snider, ¶ 3. It has come to defense counsel's attention that defense counsel inadvertently produced copies of the videos containing audio, portions of which include privileged communications between defense counsel and Mr. Virgen Mendoza. Id. ¶ 4. At the time defense counsel produced the video files, defense counsel believed that there was no audio associated with the file. Id. ¶ 5.

Defense counsel now seeks a court order requiring counsel for the government and counsel for co-defendants to immediately return to defense counsel or otherwise delete and destroy all video files produced on July 24, 2019, without opening such files. To the extent a party has already listened to the audio associated with the video, defense counsel requests that the court order such party not to introduce, refer, or use in any way the audio associated with the video. Defense counsel will promptly re-produce the video files without the associated audio.

ORDER

GOOD CAUSE APPEARING, the Court hereby orders counsel for the government and counsel for co-defendant Erik Quiroz Razo, Erasmo Villegas Suarez, and Maria Luisa Moreno to immediately return to counsel for defendant Conrado Virgen Mendoza any CD containing any portion of reciprocal discovery marked FD0069-FD0127 and to destroy any electronic copies of such reciprocal discovery. To the extent a party has already listened to the audio associated with the video, such party is hereby ordered not to introduce, refer, or use in any way the audio associated with the video.

IT IS SO ORDERED.

DECLARATION OF ERIN M. SNIDER

I, Erin M. Snider, declare as follows:

1. I am an Assistant Federal Defender with the Office of the Federal Defender for the Eastern District of California.

2. The Office of the Federal Defender was appointed to represent Defendant Conrado Virgen Mendoza on January 18, 2019. I am one of the attorneys assigned to Mr. Virgen Mendoza's case.

3. On July, 24, 2019, my office produced as reciprocal discovery fifty-nine videos marked as FD0069-FD0127. The videos recreated Mr. Virgen Mendoza's drive from the early morning of December 26, 2019.

4. As I was preparing our exhibits for trial, it came to my attention that my office had produced copies of the videos containing audio, portions of which include privileged communications between defense counsel and Mr. Virgen Mendoza.

5. At the time we produced the videos, we believed that there was no audio associated with the video files, as we understood that the audio-recording function had been turned off on the dash camera used to record the drive.

6. During my review of the files today, it came to my attention that the audio was not, in fact, muted.

7. The production of this reciprocal discovery was inadvertent and neither defense counsel nor Mr. Virgen Mendoza intended to waive attorney/client privilege.

I declare under penalty of perjury that the matters herein as to which I have personal knowledge are true and correct.

Executed this 27th day of August, 2019, at Fresno, California.