USA v. Eklund

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOUIS HOLGER EKLUND,
Defendant.
Case No. 3:18-cr-00035-SLG-MMS
ORDER REGARDING MOTION FOR PAPER DISCOVERY
Before the Court at Docket 360 is defendant Louis Holger Eklund’s pro se filing
entitled “Motion for Discovery Pursuant to Fed. R. Crim. P. Rule 16(a)(1)(B)(i)(E)(i).” The
government responded in opposition at Docket 366.
Mr. Holger is in custody at the Anchorage Correctional Complex (ACC) awaiting
trial in this case. In January 2020, Mr. Holger elected to represent himself, and the Court
appointed attorney Lance Wells as standby counsel.1 The government provided
discovery to Mr. Wells digitally. The digital discovery appears to consist of documents
and audio files and contains “government-supplied indexes of discovery in Excel format.”2
Mr. Holger currently has three disks of digital discovery with him at the ACC.3 Mr. Holger
asserts that since June, he has “been able to review the discovery CDs twice, over a
period of time totaling about 4 hours” and that none of the audio files on the CDs were
1 Docket 147.
2 Docket 366 at 3.
3 Docket 360 at 2.
Case 3:18-cr-00035-SLG-MMS Document 367 Filed 10/30/20 Page 1 of 4

Case No. 3:18-cr-00035-SLG-MMS, United States v. Eklund
Order Re Motion for Paper Discovery
Page 2 of 4
playable.4 He maintains that the computer available to him at the ACC is “slow, old,
ragged, & busted up.”5 Mr. Holger seeks an order requiring the government to provide
him with “a full copy of discovery in paper format, including paper transcripts of the audio
files.”6 He reasons that Federal Rule of Criminal Procedure 16(a)(1)(E) has been violated
because he has “not been provided with the oportunity [sic] to inspect nor copy the
documents & papers & audio files that are on the discovery CDs.”7
The government responds that it “has fulfilled its discovery obligations under
Federal Rule of Criminal Procedure 16 by producing discovery to the defendant’s standby
counsel” and that the Rule “does not compel the government to change the [sic] print
discovery for the defendant when it has already provided discovery in functional electronic
format.”8 The parties agree that there are many thousands of pages of discovery in this
case: The government estimates there are more than 18,200 pages.9 The government
contends that “it would be unreasonable to print” that amount of discovery and that
standby counsel can print discovery if requested by Mr. Holger.10 And if standby counsel
notifies the government that he cannot open certain digital files, “the government will
4 Docket 360 at 2–3.
5 Docket 360 at 4.
6 Docket 360 at 7.
7 Docket 360 at 4.
8 Docket 366 at 3.
9 Docket 366 at 4; Docket 360 at 3.
10 Docket 366 at 4.
Case 3:18-cr-00035-SLG-MMS Document 367 Filed 10/30/20 Page 2 of 4

Case No. 3:18-cr-00035-SLG-MMS, United States v. Eklund
Order Re Motion for Paper Discovery
Page 3 of 4
insure that a functional file is provided,” but no such notice has been provided to it.11 The
government supports its position with a declaration from the Director for Institutions for
the Alaska Department of Corrections, who states that the ACC currently has working
computers for inmates to use, and that “[i]f an inmate received approximately 18,000
pages of paper discovery, that would create a logistical problem,” but that an inmate
“could have a box or two [of discovery] in his cell at a time.”12
Mr. Holger cites to no authority requiring the government to disclose discovery in
a particular form. Rule 16(a)(1)(E) requires the government to “permit the defendant to
inspect and to copy” discovery; the Rule does not require the government produce
discovery or to facilitate said inspection or copying if the defendant is provided with a
complete set of discovery.13 “[T]he express language contained in Rule 16 necessarily
directs the conclusion that the rule does not require the government to copy or otherwise
expend government funds in order to supply criminal defendants with their requested
material.”14 The government has met its Rule 16 obligation.
11 Docket 366 at
12 Docket 366-1 (declaration of Jeremy Hough).
13 See United States v. Krug, Case No. CR09-01148-MMM, 2013 WL 12219026, at *1 (C.D. Cal.
Jan. 4, 2013) (Rule 16(a)(1)(E) “does not require that discovery be produced in any particular
format”); United States v. Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003) (“And even if there is a
request [by the defendant pursuant to Rule 16(a)], the government is not obligated to make
copies of the items.”).
14 United States v. Freedman, 688 F.2d 1364, 1366 (11th Cir. 1982) (noting that “Rule 16 does
not expressly obligate the government to make even one copy of the documents” and
concluding that “[t]o mandate that the government expend both its valuable time and funds in
copying documents which the defendants have requested, when Rule 16 does not expressly
require such, constitutes an abuse of the trial court’s discretion[.]”).
Case 3:18-cr-00035-SLG-MMS Document 367 Filed 10/30/20 Page 3 of 4

Case No. 3:18-cr-00035-SLG-MMS, United States v. Eklund
Order Re Motion for Paper Discovery
Page 4 of 4
Mr. Holger may bring a motion if he is not able to access specified files on the
discovery disks. In any such motion, Mr. Holger should specifically identify the files he
has been unable to access and indicate to what extent he has attempted to work with
standby counsel to access these files.
In light of the foregoing, IT IS ORDERED that the motion at Docket 360 is DENIED.
DATED this 30th day of October, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:18-cr-00035-SLG-MMS Document 367 Filed 10/30/20 Page 4 of 4