The opinion of the court was delivered by: John M. Facciola United States Magistrate
The indictment charges that the defendant, Michael John O'Keefe, Sr., when employed by the Department of State in Canada, received, quid pro quo, gifts and other benefits from his co-defendant, Sunil Agrawal, for expediting visa requests for employees of Agrawal's company, STS Jewels.
By his Order of April 27, 2007, Judge Friedman required the government to conduct a thorough and complete search of both its hard copy and electronic files in "a good faith effort to uncover all responsive information in its 'possession custody or control.'" United States v. O'Keefe, No. 06-CR-0249, 2007 WL 1239204, at *3 (D.D.C. April 27, 2007) (quoting Fed. R. Crim. P. 16(a)(1)(E)).
The first category of "responsive information," as defined by Judge Friedman, was "requests respecting visa applications submitted by or on behalf of STS Jewels employees-including requests for expedited visa interview appointments, decisions granting or denying such interview requests, and the grant or denial of the visas themselves." Id. at *3. This search was to be of the files of the consulates in 1) Toronto, Canada, 2) Ottawa, Canada, 3) Matamoros, Mexico, 4) Mexico City, Mexico, 5) Nogales, Mexico, and 6) Nuevo Laredo, Mexico. Id.
The second category of "responsive information" was "all written rules, policies, procedures and guidelines regarding the treatment of expedited visa application appointments and visa application approvals at the above-mentioned posts in Canada and Mexico." Id. The government was also required to "produce any memoranda, letters, e-mails, faxes and other correspondence prepared or received by any consular officers at these posts that reflect either policy or decisions in specific cases with respect to expediting" visa applications. Id.
As to the latter, Judge Friedman emphasized his expected scope of the search and the necessity for it. He stated:
[I]t now appears from discovery produced on March 21, 2007 that employees below the level of consular officers-including even consulate secretaries and non-U.S. citizen employees-may approve requests for and schedule expedited visa interview appointments. The files of any such persons and the consulates themselves therefore also must be searched.
Such communications go directly to the defense of showing that the requests made by or on behalf of STS employees are similar to other requests for expedited visa interview appointments that (it is asserted) have routinely been granted without the provision of anything of value.
Defendants, who have received the government's submission in compliance with this Order, have moved to compel, protesting that the government has not fulfilled the responsibilities Judge Friedman imposed. Memorandum in Support of Defendants' Joint Motion to Compel ("Deft. Memo") at 1.
I. Detailed Information About the Government's Searches
First, for each location searched, defendants demand a comprehensive description of all of the sources that were searched (both paper and electronic), how each source was searched, and who conducted the search. Deft. Memo at 6 and Proposed Order.
In its opposition, the government produced the declaration of Peggy L. Petrovich, the Visa Unit Chief at the United States Consulate General in Toronto, Canada. According to Ms. Petrovich, she, along with her five-member staff, did the following in her effort to comply with Judge Friedman's April 27, 2007, Order:
1. She*fn1 searched "archived hard copies of all Standard Operating Procedures ("SOPs") to locate Expedited Appointments SOPs dating back to January 2004 that no longer existed in the electronic database." Government's Opposition to Defendants' Joint Motion to Compel Discovery ("Gov.'s Opp.") at Attachment B, page 2.
2. She searched "archived paper correspondence files to locate expedited appointment requests received via facsimile, correspondence, or electronic mail (email) and the corresponding responses attached to those requests." Id.
3. She searched "hard copy general and chronological files for any other stand-alone documents responsive to the Order." Id.
4. The "search for SOPs yielded archived expedited appointment SOPs covering the period between 2003 through May, 2007." Id. She provided hard copies produced from the electronic sources so that everything she produced to defendants was in the same paper format. Id. "The documents printed from the electronic files contain document footers that identify where in the electronic database a document is stored so that it can be located easily." Id.
5. She conducted a "search of the paper correspondence files, the usual and customary storage location for expedited appointment requests, maintained in three separate five-drawer filing cabinets." Id. This "yielded four drawers with records of expedited appointment requests dating from January 2006 to May 31, 2007." Id. at 2-3. She also searched her own work space and the work spaces of Pat Haye, Jane Boyd, and Althea Brathwaite. Id. at 3.
6. "Prior to January 2006, materials relating to expedited appointment requests were attached directly to the non-immigrant visa applications." Id. After one year, the Toronto consulate sends the hard copies of all non-immigrant visa applications to the Kentucky Consular Center for cataloging. Id. When the search was conducted, "Toronto only retained [ ] the hard copies of non-immigrant visa ...