Motion to Compel Discovery of Computer Programming Code (NIT case)

Thanks to Attorney Colin Fieman, of the Federal Public Defender of Western District of Washington State for providing this motion to compel discovery. The formatting has been changed by the editor.

JUDGE_________________

UNITED STATES DISTRICT COURT

___________ DISTRICT OF _____________

AT _____________-

UNITED STATES OF AMERICA, ) No.______________

Plaintiff, )

) MOTION AND MEMORANDUM OF LAW

v. ) IN SUPPORT OF MOTION TO COMPEL

) DISCOVERY

MR. CLIENT, ) Noted: (DATE)

Defendant. ) [Evidentiary Hearing Requested]

I. MOTION

MR. CLIENT, by his attorneys (name attorneys), respectfully moves the Court pursuant to Fed. R. Crim. P. 16(d) for an Order compelling discovery material to the defense’s pending Motion to Suppress and Motion to Dismiss Indictment. This motion is supported by the following memorandum of law and attached exhibit, as well as the accompanying certification of defense counsel in compliance with Local Rule CrR 16(i).

II. FACTS AND ARGUMENT

On (date), the defense requested a copy of the programming code for the “Network Investigative Technique” (NIT) that was deployed on Mr. Client’s computer. The defense is seeking a copy of the code so that its computer forensics expert can independently determine the full extent of the information the Government seized from Mr. Client’s computer when it deployed the NIT; whether the NIT interfered with or compromised any data or computer functions; and whether the Government’s representations about how the NIT works in its warrant applications were complete and accurate. This forensic information is relevant to Mr. Client’s Motion to Suppress and a potential motion pursuant to Franks v. Delaware, 438 U.S. 154 (1978). See United States v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003) (district court erred in denying a defendant’s motion for discovery under Rule 16 of material relating to the reliability of a drug-sniffing dog, for purposes of a motion to suppress); United States v. Gamez-Orduno, 235 F.3d 453, 462 (9th Cir. 2000) (requiring disclosure on due process grounds of a report relevant to issues in a suppression motion); see also W.D.. Wa. Local Rule CrR 16 (“It is the intent of the court to encourage complete and open discovery consistent with applicable statutes, case law, and rules of the court at the earliest practicable time”).

The defense has offered to enter into a protective order that would ensure that review of the programming code is limited to the defense team...