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Case 1:20-cr-00330-PAE Document 701 Filed 07/12/22 Page5of10 him to handle the ‘sheer amount of data that was produced.’” Jd. at 84. He then conducted a “comparative analysis,” and “concluded that determining the provenance of the Digital Music files requires conducting an individualized inquiry on a track-by-track basis.” Jd.; see id. at 85 (describing the steps the witness had taken); cf’ United States v. Ganier, 468 F.3d 920, 924, 926 (6th Cir. 2006) (concluding that an agent’s testimony “from reports generated by the forensic software that searches had been run . . . using search terms relevant to the grand jury investigation” required specialized knowledge to “make sense of the software reports’’). The Government understands, however, that this line is difficult to draw, and some discussion of the investigative steps Flatley has taken could be understood as testimony relying on his technical knowledge. For instance, although Flatley is not expected to testify about why he used a particular forensic program to confirm the accuracy of metadata, he is expected to testify that he used the program. Similarly, he would testify more generally how metadata is created and can be modified. To the extent the Court has any concern that this (or any portion of Flatley’s proffered testimony) may cross the line into expert opinion, the Government stands ready to qualify Flatley as an expert.! And for that reason, the Government has ensured that the defendant has long had notice that Flatley will testify about metadata and has long had Flatley’s expert qualifications. The Government’s September 15 letter described those qualifications, told the defendant that Flatley would testify about user information associated with devices and documents and photographs associated with the devices, and pointed the defendant to a case in which Flatley discussed metadata. See Trial Tr. at 935-38, United States v. Hirst, 15 Cr. 643 (PKC) (describing ‘The defense does not appear to dispute that Flatley could be qualified as an expert witness in this subject; their objection is only one of notice. 5 DOJ-OGR-00011184