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Case 1:20-cr-00330-PAE Document 701 Filed 07/12/22 Page2of10 expected to call Flatley as a witness at this trial. The Government explained that, although the Government believed that this testimony would not require admission through Rule 702, the Government nonetheless provided notice in an abundance of caution. In addition to the summary of Flatley’s testimony identified in the defendant’s letter (Def. Letter at 1-2), the Government identified four cases in which Flatley “previously testified regarding similar topics,” including metadata and hash values. See Trial Tr. at 935-36, United States v. Hirst, 15 Cr. 643 (PKC) (describing metadata); Trial Tr. at 292-93, United States v. DiTomasso, 14 Cr. 160 (SAS) (describing hash values); see also 11/23/21 Tr. at 22 (directing the defense to “have your expert look at the testimony that [Flatley’s] provided” to see if “he’s got some differing expert opinion’). Flatley was qualified as an expert in some of those cases; in others he was not. The defendant did not raise a Rule 16 objection to this expert notice after the Government began producing 3500 material on October 11, 2021. Nor did the defendant raise an objection on October 18, 2021—the time designated for filing motions in limine. Cf Mot. to Exclude Testimony of Dr. Lisa Rocchio, Dkt. No. 443. Instead, the defendant first complained about the sufficiency of the notice at the final pretrial conference on November 23, 2021—less than a week before the start of trial. See 11/23/21 Tr. at 21-23. The Government quickly responded to the defense’s notice concern, and three days later, the Government provided the defendant with a letter that summarizes Flatley’s expected direct testimony and identified the Government exhibits about which Flatley was expected to testify. (Def. Letter at 2-3). That November 26, 2021, letter, which is attached as Exhibit A, continues to reflect Flatley’s expected direct testimony, although the Government may not ask about all of the exhibits mentioned therein. On November 27, 2021, the defendant wrote the Government a letter in which the DOJ-OGR-00011181