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Case 1:20-cr-00330-AJN Document 64 Filed 10/14/20 Page 2 of 6 The Honorable Alison J. Nathan October 14, 2020 Page 2 A. Applicable Law 1. Brady “Under Brady and its progeny, ‘the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is ‘material’ either to guilt or to punishment.’” United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 91 (2d Cir. 2014) (quoting United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001)). “Favorable evidence” that must be disclosed for purposes of Brady “includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness,” id., also known as “Giglio material,” as well as any statements of witnesses “which are contradictory or inconsistent with the government’s theory of the case.” United States v. Harris, No. 00 Cr. 105 (RPP), 2000 WL 1273720, at *2 (S.D.N.Y. Sept. 7, 2000) (citing Kyles v. Whitley, 514 U.S. 419 (1995). 2. Rule 16 Rule 16 provides, in pertinent part: Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and. . . the item is material to preparing the defense[.] Fed. R. Crim. P. 16(a)(1)(E). Evidence is material under Rule 16 if it “could be used to counter the government’s case or to bolster a defense.” United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993). “The materiality standard [of Rule 16] normally is not a heavy burden; rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” United States v. Stein, 488 F. Supp. 2d 350, 356-57 (S.D.N.Y. 2007) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir.1993) (internal quotation marks omitted)). Rule 16(d)(1) provides that a party may seek a protective order from the court to “deny, restrict, or defer discovery” upon a showing of “good cause.” Fed. R. Crim. P. 16(d)(1). To establish good cause, the party must show “that disclosure will result in a clearly defined, specific and serious injury.” United States v. Smith, 985 F. Supp. 2d 506, 523 (S.D.N.Y. 2013) (citations omitted). A finding of harm “must be based on a particular factual demonstration of potential harm, not on conclusory statements.” /d. (citations omitted). DOJ-OGR-00001796