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Case 1:20-cr-00330-PAE Document536 Filed 12/10/21 Page20o0f43 20 LBNAMAXTps 1 your Honor, although it's not clear from the expert notice 2 whether they anticipate going beyond pure fact testimony. 3 MR. EVERDELL: Your Honor, at this point we anticipate 4 him being a fact witness. a THE COURT: Summary and fact witness. 6 MS. MENNINGER: Yes. 7 MR. EVERDELL: I think. 8 THE COURT: Doesn't sound like expert to me, so I 9 don't think there's anything to do on that now. 10 Kelso also seems largely anticipated to summarize data 11 documents and photographs on electronic devices either as a 12 fact witness or summary testimony under 1006. And except 13 Kelso's testimony that may cross over into expert testimony is, 14 I'm going to quote from the notice, "generally about computer 15 forensic principles associated with the creation of document 16 storage and retrieval of digital documents and photographs, 17 including the limits to the information that can be gleaned 18 from the metadata." 19 I don't think there's been a sufficient disclosure at 20 this point pursuant to Rule 16. The disclosure doesn't say 21 what Kelso's opinions actually are about, as to any of these 22 topics, or provide any basis for those opinions. So certainly 23 further disclosure would be necessary before I would allow 24 xpert testimony. Is that anticipated? 25 MS. MENNINGER: Your Honor, this is my witness. He SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008330