Commercial Litigation and Arbitration

Summaries & Fed.R.Evid. 1006 — As Long as Underlying Documents Are Made Available to Opponent, Database Containing Them Need Not Be

From United States v. Lewis, 2010 U.S. App. LEXIS 2897 (10th Cir. Feb. 12, 2010):

Using the bank records, the government created a computer database detailing the activity in some 170 accounts. The database of checks, wire transfers, deposits, and the like contained over 15,500 items. By making queries of the database, government agents were able to prepare summary exhibits for presentation to the jury. These exhibits were made available to Schmidt 10 days before trial. On April 20, 16 days after trial began and 10 days before the exhibits were to be shown to the jury, Schmidt filed a motion seeking access to the database and the queries made of it. He argued that he could not "adequately review the summary exhibits to determine their accuracy, completeness and fairness without access to the underlying source material." *** The district court denied his motion. It explained that the "underlying source material" was the bank records themselves, which had been available to Schmidt since June 2004, and that the database was undiscoverable because it was government work-product under Fed. R. Crim. P. 16(a)(2)***.

Rule 1006 did not require disclosure of the government's database. Although that rule entitles the defendant to review the documents summarized in an exhibit, the database served only as an aid in preparing the summary — allowing the government to perform calculations from the bank records. The underlying documents in this case are not the database but the bank records themselves. The purpose of requiring the party offering a summary to make the underlying documents available to the opposing party is to enable the opposing party to check the accuracy of the summary. Access to the offering party's worksheets or database may make it easier for the opposing party to perform that check; but so long as the opposing party is given sufficient time to inspect the underlying documents, there is no reason to give the opposing party the benefit of the offering party's labor in preparing such worksheets or database. Here, Schmidt had ample time to inspect and review the bank records so that he could challenge any inaccuracy in the summaries. As stated above, the government made these bank records available for examination well before trial; and all the records used to construct the summary exhibits had been admitted into evidence. Rule 1006 therefore had been satisfied. Because the database was not subject to disclosure under Rule 1006, there is no need to determine whether disclosure would otherwise be barred by the Rule 16(a)(2) work-product privilege.

330 year sentence reduced on other grounds to 310 years.

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