USA v. Schwier

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MATTHEW WILLIAM SCHWIER,
Defendant.
Case No. 3:17-cr-00095-SLG
ORDER REGARDING MOTION TO REGULATE DISCOVERY
Before the Court at Docket 369 is the government’s Renewed Motion for
Order Regulating Discovery and In Limine Litigation Regarding Defense Expert
Evidence. Defendant Matthew William Schwier responded in opposition at Docket
372.
The government seeks an order “regulating discovery regarding the
defense’s expert witness and a reasonable procedure, prior to trial, for potential in
limine litigation under Daubert v. Merrell Dow Pharmaceuticals.”1 Specifically, the
government seeks from the defense a written summary of the expert’s testimony,
“the bases and reasons for those opinions, and the witness’ qualifications” so that
the government can determine whether it should file a motion in limine regarding
1 Docket 369 at 1.
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the expert.2 It appears that the defense intends to call Jeffrey Fischbach as an
expert witness at trial but has provided no Rule 16 summary to the government.
The government contends that “without knowing the basis of Mr. Fischbach’s
opinion, the Government cannot meaningfully litigate the admissibility [of] such
evidence under Federal Rules of Evidence 702 or 403.”3 The government
maintains that it has disclosed to the defense summaries of its expert witnesses’
testimony consistent with Federal Rule of Criminal Procedure 16(A)(1)(G), despite
the defense not requesting such disclosures.4
Mr. Schwier responds that he has no obligation pursuant to Rule 16 to
provide a summary of his expert’s anticipated testimony for two reasons. First,
Mr. Schwier correctly notes that Rule 16 conditions his expert discovery disclosure
on him having requested expert disclosure from the government, which he has not
done.5 Second, Mr. Schwier maintains that the government has not provided him
with a written summary of the expert testimony it intends to use in its case-in-chief,
2 Docket 369 at 2.
3 Docket 369 at 3.
4 Docket 369 at 2; Docket 370 (copy of government’s disclosed expert materials) (under seal).
See Fed. R. Crim. P. 16(A)(1)(G) (“At the defendant’s request, the government must give to the
defendant a written summary of any testimony that the government intends to use . . . in its case
in chief at trial.”) (emphasis added).
5 Docket 372 at 1; Fed. R. Crim. P. 16(b)(1)(C).
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despite Rule 16 conditioning the defense’s expert discovery disclosure obligation
on the government having provided such a summary.6
The Court has reviewed the expert materials disclosed by the government
and the government’s recent filing of certain discovery in this case.7 The Court
finds that the disclosed materials, standing alone, do not constitute “a written
summary of any testimony that the government intends to use under Rules 702,
703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial . . .
[that] describe[s] the witness’s opinions, the bases and reasons for those opinions,
and the witness’s qualifications”8 because the materials produced are overbroad
and do not indicate what portions of the discovery the government expects to
actually introduce as expert opinion evidence in its case-in-chief. However, the
government clarified and limited the scope of its experts’ testimony in its trial brief,
which was filed more than two years ago. The government’s trial brief expressly
summarizes FBI SA Steeves’ anticipated testimony and explains her opinions and
bases for the opinions.9 The government provided SA Steeves’ qualifications in its
disclosure to the defense.10 Regarding SA Allison, his qualifications are set forth
6 Docket 372 at 2–3; Fed. R. Crim. P. 16(b)(1)(C).
7 See Docket 370 (copy of government’s disclosed expert materials) (under seal).
8 Fed. R. Crim. P. 16(a)(1)(G).
9 Docket 119 at 15–18; Docket 370-1 at 113–16.
10 Docket 370-1 at 118–21 (Steeves’ curriculum vitae) (under seal).
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in the government disclosure,11 and in its trial brief the government limits and the
trial brief adequately summarizes SA Allison’s anticipated direct examination
testimony, which explains his opinions and bases for the opinions.12 In sum, the
government has adequately disclosed its anticipated expert testimony at trial and
the bases for the experts’ opinions.
“There is universal acceptance in the federal courts that . . . a district court
has the authority to enter pretrial case management and discovery orders
designed to ensure that . . . that the parties have an opportunity to engage in
appropriate discovery and that the parties are adequately and timely prepared so
that the trial can proceed efficiently and intelligibly.”13 Although Rule 16 does not
obligate the defense to disclose an expert summary in light of the current discovery
posture, the Court elects to exercise its inherent authority to regulate discovery
and to minimize unjustifiable delay during trial.14 Therefore, IT IS ORDERED that
the defense shall disclose a written summary of Mr. Fischbach’s expert testimony
that the defense intends to use at trial, to include Mr. Fischbach’s opinions, the
bases for those opinions, and Mr. Fischbach’s qualifications, to the government on
11 Docket 370-1 at 122–25 (Allison’s curriculum vitae) (under seal).
12 Docket 119 at 12–13.
13 United States v. W.R. Grace, 526 F.3d 499, 516 (9th Cir. 2008).
14 Cf. id. (“As to the disclosures not mandated by Rule 16, the court has inherent authority to
enforce its specific discovery order, which the government would violate if it were to call
undisclosed nonexpert witnesses.”).
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or before July 21, 2021. Although Mr. Schwier contends that Mr. Fischbach’s
testimony may be affected by the trial testimony of the government’s experts,15 the
Court emphasizes that it intends to hold the government to the summaries and
limitations on expert testimony as presented in its trial brief. Accordingly, the
defense expert should easily be able to anticipate the government experts’
testimony. Although the government sought to have this disclosure made by July
2, 2021, so that it could file any necessary motions related to the defense expert,16
the Court does not find this timeline to be necessary. There has been a significant
amount of pretrial litigation in this case involving Mr. Fischbach, and the
government should not now need two weeks to prepare a motion challenging his
expert opinions. Moreover, the Court can hold any necessary hearing as to the
admissibility of Mr. Fischbach’s testimony on the scheduled day for the start of
trial—without delaying the jury—by having the jury report one day later.
In light of the foregoing, the motion at Docket 369 is GRANTED IN PART.
The defense shall produce its disclosure related to Mr. Fischbach to the
government on or before July 21, 2021.
DATED this 2nd day of July, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
15 Docket 372 at 6.
16 Docket 369 at 9.
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