Datasets:

johnearlesullivan
/

capitol

The United States files this memorandum for the purpose of describing the status of
implementation of our Capitol Siege1 global discovery plan, i.e., our plan for producing or
making accessible to all defense teams voluminous data collected by the government in relation
to the Capitol Siege investigation, so they may identify information they deem relevant.2 Under

1 The “Capitol Siege” refers to the events of January 6, 2021, when thousands of individuals
entered the U.S. Capitol and U.S. Capitol grounds without authority, halting the Joint Session
and the entire official proceeding of Congress for hours until the United States Capitol Police (“USCP”), the Metropolitan Police D epartment (“MPD”), and other law enforcement agencies
from the city and surrounding region were able to clear the Capitol of rioters and to ensure the safety of elected officials.
2 By way of illustration, the data subject to the global discovery plan includes items such as:
1. Investigations into all allegations of officer misconduct arising out of January 6, 2021 (regardless of whether sustained);
2. Thousands of hours of surveillance footage from the USCP, MPD, the U nited States
Secret Service (“USSS”), and the Senate and House floors, and body- worn -camera
(“BWC”) footage from multiple law enforcement agencies that responded on January 6, 2021;
3. Radio transmissions for multiple law enforcement agencies that responded on January 6, 2021;
4. Location history data for thousands of devices that connected to the Capitol’s cellular network infrastructure, or whose presence within the restricted perimeter was captured in records obtained from Google and multiple data aggregation companies;
5. Thousands of tips;
6. Relevant materials from other subjects’ case files, including results of searches of digital devices, Stored Communications Act (“SCA”) accounts, and interviews of
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 1 of 202
our global discovery plan , the data that is being made accessible to all defendants far exceeds the
information to which any defendant is entitled under Federal Rule of Criminal Procedure 16, the
Jencks act, or our Brady obligations.3 We are making such vast quantities of data available due
to the unique circumstances of this matter, i.e., literally hundreds of similar crimes being
committed in the same place contemporaneously.
This memorandum addresses the status of:
1. Production of voluminous amounts of video to the Federal Public Defender (“FPD”)
instance of evidence.com (access available since October 18, 2021), and the multiple
tools the government has provided to assist the def ense in locating footage they may
consider relevant;
2. The ability of inmates housed in the D.C. Department of Corrections (“DOC”) to
access those same materials through a separate DOC instance of evidence.com
(beginning as of February 4, 2022) ;
3. Voluminous documents produced since our last status memorandum dated November
5, 2021;
4. The ability of legal defense teams to obtain access to FPD’s Relativity workspace
(beginning as of January 21, 2022) , and the current contents of that database;
5. Manner of production of voluminous documents in view of defense counsel access to
Relativity (beginning as of February 3, 2022);
6. Plans for a n e-discovery room in the DOC;
7. Access by inmates to laptops made available through the DOC’s e -discovery
program;
8. Access to voluminous discovery by pro se defendants;
9. Challenges we are overcoming ; and
10. Our plan for certain trials that may proceed before our discovery plan is substantially
executed.

***

other subjects, witnesses, tipsters and victims (redacted o f identifying information as
appropriate); and
7. All reports and exhibits related to allegations of officer misconduct or complicity on
January 6, 2021.

3 Brady v. Maryland, 373 U.S. 83 (1963) Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 2 of 203
1. Status of Production of Video Footage to FPD Instance of Evidence.com
Since our last status memorandum describing the status of discovery (dated November 5,
2021) , the following video footage has been shared to the defense instance of evidence.com and
is accessible to any Capitol Siege defense counsel who requests a license from FPD :
1. 1,063 files consisting of approximately 714 hours of BWC footage recorded by 675
MPD officers.
2. 104 files consisting of approximately 102 hours of BWC and pole cam era footage
recorded by approximately 54 Arlington County Police Department (“ACPD”)
officers

At this juncture, just over 24,000 files consisting of USCP closed circuit video (“CCV”)
footage , BWC from multiple law enforcement agencies, and USSS surveillance footage have
been made available to the defense instance of ev idence.com. For context, t he files provided via
evidence.com amount to over nine terabytes of information and would take 102 days to view .
Accordingly, s olely to assist Capitol Siege defense teams in identifying video files they may
consider relevant in specific cases, we have also produced the following analytical and mapping
tools, all of which comprise substantial government work product:
1. MPD Radio Global Positioning Satellite (“GPS”) Spreadsheet : The Discovery Team
learned th at radios provided to MPD officers by the D.C. Office of Unified
Communications (“OUC”) provide GPS location data when four or more satellites are
visible to the radio. Under these circumstances, the data is transmitted: (1) every ten
minutes; (2) when there is an emergency activation on the radio; and (3) each time an
officer pushes the button to talk over the radio. The Discovery Team obtained MPD radio GPS records for January 6, 2021 and created a spreadsheet of data that may be
plotted on a time -scaled map using commercially available GPS mapping software.
In many instances, the subscriber alias for a radio is an individual officer’s Computer Aided Dispatch (“CAD”) number and last name. Since MPD BWC footage in
evidence.com is also frequently saved under an officer’s CAD number and name , a
particular officer’s radio location information can be used to search for BWC footage
from the same time and location in evidence.com ;

2. BWC Summary Spreadsheet and related zone maps: This 752- page spreadsheet was
initially created by over sixty individuals as an investigative tool to assist prosecutors
in locating relevant BWC footage from responding law enforcement agencies including MPD, Montgomery County Police Department, and Fairfax County Police Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 3 of 204
Department . Wi th respect to over 2,800 BWC video files, the spreadsheet provides:
(1) the name and CAD number of the officer associated with the video, (2) the video
start time, (3) a short summary of notable events observed by the reviewer including potential crimes observed and the time the camera appears to enter the Capitol, if any; and (4) the apparent location of the camera between noon and midnight, using 15-
minute periods of duration. The locations identified correspond to zone maps that
section the interior of the Capitol, the Lower West Terrace, and the Capitol Grounds
into smaller areas ;

3. USSS video spreadsheet : The Discovery Team created a spreadsheet containing the
filenames/titles, starting times, video length, and date of USSS video ;

4. 15 camera maps of the interior of Capitol Visitor’s Center and the interior of the Capitol , and one camera map of the Capitol grounds. The maps depict the general
location of the cameras that are identified by unique number in each USCP CCV video filename ;

5. ACPD spreadsheet: The Discovery Team created a spreadsheet listing start times of handheld camera video from Arlington County Police Department ; and

6. A timeline of events drafted by the USCP , beginning December 16, 2020,
memorializ ing critical events occurring in advance of and during the Capitol Siege.

2. Status of Access to Evidence.com by Defendants Housed in the D.C. Department of
Corrections

Through a n unprecedented collaboration among the government, FPD, FPD’s National
Litigation Support Team (“NLST”), American Prison Data Systems (“APDS”) , the DOC, and
Axon Enterprise, Inc. (“Axon”), as of February 2, 2022, a separate, stand -alone instance of
evidence.com has been made available to allow in -custody Capitol Siege defendants who are
pending trial to view video footage. This DOC instance of evidence.com is a mirror image of the
FPD instance of evidence.com . The government and FPD have drafted a memorandum of
understanding describing the contents of the DOC instance , the applicable technical settings, and
the requirements for inmates to obtain access . In brief, the government will make a request for
an inmate to gain access to the DOC instance of evidence.com once the assigned prosecutor Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 4 of 205
notifies the Capitol Siege Discovery Unit Chief that one of the following three things has
occurred:
1. The inmate has signed Attachment A to the protective order;
2. The inmate has stated on the record in court that s/ he has read the protective order,
reviewed it with his/her attorney, understands the protective order, and agrees to
abide by it; or
3. (a) A defense attorney has represented to the assigned prosecutor in writing that they have reviewed the protective order w ith their client and have been authorized to sign
Attachment A on their client’s behalf; and (b) the defense attorney also agrees that at
the next scheduled hearing in which the client is present, s/he will put on the record that s/he signed Attachment A on the client’s behalf after reviewing the protective order with him or her.

Based upon information provided by APDS, as of February 9, 2022, twenty Capitol Siege
inmates should have received access to evidence.com over their APDS educational tablets.
4 As
of today, a ssigned prosecutors are still waiting for defense counsel who represent an additional
fifteen Capitol Siege defendants to confirm their respective client’s agreement to abide by the
terms of the protective order.
3. Status of Production of Documents to Date
Global productions made to defense counsel since November 5, 2021 ( Global Production
Nos. 8 to 11) have continued to focus on materials most fre quently requested by defendants and
include items (in addition to some of the tools referenced above) such as :
1. Two new USCP Office of Professional Responsibility (“OPR”) reports and 16
associated exhibits ;
2. Forty additional exhibits to previously produced USCP OPR repor ts;
3. One hundred sixty- two USCP Use of Force reports and exhibits ;
4. A collection of MPD Use of Force reports and exhibits ;
5. Sixty -five video files of the Capitol Siege recorded by MPD’s Electronic Surveillance
Unit and six related reports ;
6. Ten video files of footage from the Senate floor from the Senate Recording Studio;
7. Ten video files of footage from the House floor from the House Recording Studio;
8. Sixty -four audio recordings of Virginia State Police radio communications ;

4 Although APDS attempted to make the link accessible on February 4, there were technological
issues. As of February 9, we understand that those issues have been resolved. Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 5 of 206
9. Eight audio files of USCP radio communications and conference bridge ;
10. A redacted transcript of the USCP Dignitary Protection Detail radio channel ;
11. 18,484 anonymous tips received by MPD ;
12. Documents relevant the interstate commerce element of charged offenses ; and
13. USSS files related to Vice President Elect Kamala Harris and Vice President Michael
Pence’s whereabouts on January 6, 2021.

These materials are substantial . For example, the exhibits to USCP OPR and MPD U se of F orce
reports described above include approximately 94 audio- recorded interviews of officers and
witnesses (35 USCP OPR interviews and 59 MPD use of force interviews).
4. Access to FPD Relativity Workspac e
On Friday, January 21, 2022, FPD circulated instructions to defense attorneys on how to
gain access to the FPD Relativity workspace. Capitol Siege defense attorneys were advised that
since the Relativity database is in a FedRAMP,5 secure environment, completing the process for
obtaining access is time -consuming for FPD and its vendor . Thus, counsel should expect the
process for gaining access to the database to take at least four to five business days from when
counsel first submit s a Relativity License Request Form.
5. Manner of Production Going Forward
Approximately two weeks after Capitol Siege defense counsel were notified to apply for
Relativity access, and after providing ample notice to defense counsel, the Discovery Team
began making its global productions directly to the defense Relativity workspace and
discontinue d the practice of making voluminous productions via USAfx.6 Using a defense

5 The Federal Risk and Authorization Management Program (FedRAMP) was established in
2011 to provide a cost -effective, risk -based approach for the adoption and use of cloud services
by the federal government. FedRAMP empowers agencies to use modern cloud technologies,
with an emphasis on security and protection of federal information.

6 We expect prosecutors will continue use USAfx to make productions in individual cases.
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 6 of 207
Relativity workspace to receive materials produced by the government in discovery will have
several benefits for defense teams, including but not limited to avoiding any challenges they may
have experienced in downloading large productions from USAfx.7 They will no longer need to
download productions to review them, as the materials will already be available for review in the
database. Additional benefits will include the ability to perform keyword searches across the
materials in the database, including searches of audio and video that has been “machine”
transcribed.8 Also, within the database, materials that are linked to each other (e.g., a report and
multiple exhibits), will be easily identified as connected to eac h other for reviewing purposes,
even if the materials were not initially provided in the same discovery production.9 Notably,
many of the materials we will be providing, such as thousands of tips or the results of searches of
other defendants’ devices and SCA accounts, would be of little value if produced in any other
manner. In addition to the fact that they would likely exceed the capacity of our file transfer
system or defense downloading capabilitie s – and thus require an enormous number of storage
devices to be provided in every single case – there would be no way to search the contents
universally.

7 USAfx is merely a tool for file transfer using the Internet, while Relativity is an online search
and review database. USAfx is not an optimal nor in many cases even a workable manner of
transferring extremely large volumes of data.

8 Machine transcription is an imperfect tool that is intended to assist defense teams in locating
relevant information. On high- quality audio files (e.g., equivalent to a deposition or court
hearing), machine -transcription is more accurate than on audio files that contain background
noise or in which the speakers are not clearly enunciating (e.g., cell phone videos, custodial interviews, radio communications, voicemails).

9 In e-discovery parlance, linked documents (such as a report and exhibits, or an email and
attachments), are also known as a document “family.”
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 7 of 208
Defendants will not be provided access to the FPD Relativity workspace , given the
extensive volume of highly sensitive materials currently therein and those that we will produce in
the future . Pursuant to the protective order issued in Capitol Siege cases, defense counsel may
not permit defendant s to view such materials unsupervised by defense counsel or an attorney,
investigator, paralegal, or support staff person employed by defense counsel .10 By way of
illustration, highly sensitive materials currently in the database include allegations about officers’
use of force or complicity with rioters (even if ultimately not sustained ), and CCV camera maps
of the Capitol and grounds containing information that , if further disclosed, could negatively
impact the security of the U.S. Capitol. In the future, such materials will grow to include
relevant materials derived from searches of subjects’ digital devices and social media accounts ;
interviews with defendants, tipsters , witnesses , and victims ; background information
accumulated about investigation subjects; and financial , communications, and travel records
pertaining to investigation subjects that may bear little or no relevance to most other defendants.
Notably, such information may pertain to subject s who are not currently and who may never be
charged.
Of course, we will continue to notify the defense of materials have been added to the
FPD Relativity workspace so that counsel and defendants may collaborate to identify any
materials a defendant should review in a particular case. Subject to the protective order, defense
counsel can share such documents with their respective clients through a variety of mechanisms

10 The protective order places the burden of demonstrating need for protection on the
government, and it gives the assigned prosecutor ample flexibility to negotiate sensitivity
designations and redactions with respect to individual document s in specific cases. It further
permits defendants to contest any sensitivity designation when no agreement may be reached.
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 8 of 209
including Internet -based file transfer systems or traditional storage devices, such as hard drives,
flash drives, and discs.11
At this juncture, the defense Relativity workspace contains Global Productions 8 to 11,
and portions of Global Production No. 2 (all of which were already made accessible to defense
teams via USAfx ). We are in the process of transferring Global Production Nos. 1 through 7 to
the defense Relativity workspace and anticipate that process will be completed this week.
Among the materials the government expects to provide in the near future are:
1. The remainder of discoverable documents we received from the USCP and MPD in
response to requests by the Discovery Team.12

2. Over 900 records pertaining to Federal Bureau of Investigation (“FBI”) interviews of
law enforcement officers. These records are currently being redacted to remove information such as officer’s personal telephone numbers ;

3. Search warrant documents related to the FBI’s collection of: (a) cell tower data from
Verizon, AT&T, and T -Mobile/Sprint ; (b) Google account subscriber information and

11 FPD and i ts vendor are also attempting to determine if it will be possible for defendants to
view selected materials within the Relativity workspace, utilizing permissions that would ensure the selected materials are viewable only by the relevant client.

12 We have nearly completed our assessment and review of approximately 56,000 records
provided by the USCP and MPD. Discoverable documents from both data sets continue to be turned over to the defense on a rolling basis. Those discoverable materials not yet produced will
be shared to the FPD Relativity workspace as soon as the on- going review and redaction process
is completed.
Of approximately 22,000 MPD records we received, we determined that approximately 19,300 were unique (not duplicates) and needed review. Of those , approximately 18,200 have been
reviewed and deemed discoverable – they are now in the redaction process. There are still approximately 1,000 MPD records undergoing review. The remainder have been deemed not discoverable.
Of approximately 34,000 USCP records we received, we removed a large number of files from the review process because: (1) they consisted of unscoped digital devices or social media accounts, or (2) they were duplicative. At this juncture, of the remaining approximately 13,200 documents, approximately 3,000 documents are still undergoing review, and approximately 4,200 are in the process of being redacted.
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 9 of 2010
location data from the Capitol and restricted perimeter , i.e., the Google geofence
warrants; (c) anonymized location data collected by ten data aggregation companies ;
and (d) basic subscriber information for Facebook/Instagram accounts linked to the
anonymized advertising identifiers obtained pursuant to the data aggregation
warrants. These materials are currently being redacted to remove law enforcement
sensitive infor mation, for example, the precise location of cellular network
infrastructure that provide d cellular service to the Capitol on January 6, 2021;

4. Archived Parler13 posts and comments from around the period of January 6, 2021,
hosted by the Internet Archive Project and retrieved by the FBI ; and
5. Videos scraped from Parler that were deemed potentially relevant to the Capitol Siege after the FBI’s review of thousands of videos from a two- week period encompassing
January 6, 2021.
Finally, we currently have a surge team reviewing for discoverability and sensitivity an
additional 26,000 FBI documents that were previously loaded into our Relativity database.
Relevant documents will be provided after appropriate redactions are completed .
6. Status of Access to Documents in Defense Team Relativity Workspace by Inmates
Housed in the D.C. Depart ment of Corrections

We continue to collaborate with FPD and DOC with respect to the creation of an e-
discovery room in the Correctional Treatment Facility in which Capitol Siege defendants can
access materials pro vided to them by counsel from the defense team Relativity workspace . The
government and FPD’s vendors have worked together to establish a plan for production options

13 Parler is social media website that was used by some individuals to coor dinate in advance of
the Capitol Siege. See, e.g., Timberg, Craig and Harwell, Drew, “ Pro-Trump f orums e rupt with
violent t hreats ahead of Wednesday’s r ally against the 2020 e lection , The Washington Post, (Jan.
5, 2021), https://www.washingtonpost.com/technology/2021/01/05/parler -telegram -violence- dc-
protests/ ; Frenkel, Sheera , The Storming of Capitol Hill was O rganized on S ocial M edia, The
N.Y. Times , (Jan. 6, 2021), https://www.nytimes.com/2021/01/06/us/politics/protesters -storm -
capitol -hill-building.html . Parler went offline on January 10, 2021, when Amazon Web Services
canceled its hosting services. See Room, Tony and Lerman, Rachel, “ Amazon suspends Parler,
taking pro- Trump site offline indefinitely , The Washington Post, (Jan. 11, 2021),
https://www.washingtonpost.com/technology/2021/01/09/amazon- parler -suspension/ . Concerned
that Parler was going to be taken offline, the government attempted to collect and preserve publicly available Parler posts, comments , and videos through a variety of methods .
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 10 of 2011
and formats for detained defendants . Broadly , the options under consideration would allow
counsel to share productions to detained defendants in one of two ways:
1. An HTML production format that would provide a “CSV”14 file with metadata fields
and links to the documents for review . The CSV file would also contain a column in
which inmates could make notes about individual documents and send them back to
counsel for review. The CSV would be delivered to inmates on a storage device or
via a file transfer program.

2. Productions could be viewed within the Relativity workspace in the manner being
considered per footnote 11 .

Fifteen laptop computers that FPD ordered to support the proposed program are in transit to
FPD. The government, FPD and DOC have made significant progress on a memorandum of
understanding that will govern each party’s duties and responsibilities in relation to such a
program.
The implementation of this solution has met with some delays recently, in part due to the
need to identify individuals who would be willing to staff the room. Under the agreement in
principle, FPD will be responsible for providing necessary staffing of an e-discovery room . At a
bare minimum, staff will be responsible for assigning computers for review and ensuring defendants are able to access the relevant programs.
15 Finding staff with the requisite computer
skills who are willing to work full -time in a correctional setting is challenging, and that challenge
is further exacerbated by the existence of the COVID -19 pandemic. In any event, even if staff
were currently available, it is questionable whether the program could have been made accessible

14 A CSV (comma -separated values) file is a text file that has a specific format which allows data
to be saved in a table structured format. It can be opened in a wide variety of programs and is
commonly opened in Microsoft Excel and appears as a spreadsheet.

15 Ideally, such staff would be able to provide additional support including troubleshooting issues
with computers and assistance with accessing and reviewing productions.
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 11 of 2012
to larg e groups of inmates in recent months . Pursuant to medical stay -in-place protocols issued
December 22, 2021, the DOC has suspended all in- person small group activities and volunteer
services in the effort to combat the spread of COVID -19.16
7. Status of Access to Laptops Through DOC’s E -Discovery Program
In the interim, the DOC’s e -discovery laptop program has presented inmates with a
reasonable alternative for viewing voluminous documentation. As described in our prior
submissions, there are over 20 com puters in the DOC’s e -discovery program, and inmates may
keep them for up to two weeks at a time once they are eligible. Based on the most recent version of the laptop waitlist (dated February 4, 2022), it appears there are approximately 18 -22 inmates
on the waitlist, and 14 of them were added no earlier than January 21, 2022.
8. Pro Se Defendants
The government and FPD continue to collaborate about a discovery plan for pro se
defendants. Currently, s ubject to the terms of the protective order, standby counsel can use their
own license s for the FPD instance of evidence.com to share videos with non- detained pro se
defendants , and detained pro se defendants can view video in the DOC instance . As we have
previously made defense counsel aware, we ha ve agreed to waive the requirement that a
defendant be supervised while reviewing highly s ensitive video in cases where access is
provided through evidence.com and:
1. A protective order has been entered in the relevant case;
2. The defendant has executed the written acknowledgement to the protective order (or
been subject to an equivalent admonishment by the Court) ; and
3. The ability of the defendant to download or reshare is suppressed by counsel before
the video is shared to the defendant .

16 We understand that the DOC imminently intends to revert to the modified stay -in-place
protocols that w ere in effect prior to December 22, 2021. Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 12 of 2013
For the reasons elaborated in part 5 above, the government will not agree to providing
pro se defendants unfettered access to FPD’s Relativity workspace. However , prosecutors
assigned to pro se case will share production indexes with both defendants and their standby
counsel . Standby counsel should discuss the materials on the production index with the pro se
defendant , and subject to the protective order, s/he can share any materials requested utilizing the
same mechanisms available to represented defendants described above. Further, i n those
instances where a pro se defendant wishes to view highly sensitive documents, standby counsel
or his/her staff must supervise the defendant unless: (1) the defendant and the assigned
prosecutor are able to reach a suitable compromise or (2) the Court orders otherwise.
9. Challenge s We Are Overcoming
In November, we projected that by the end of January 2022, we would provide the
discoverable portions of several hundred thousand FBI records. We were unable to meet this goal for several reasons. Our plan was to identify a ll data in the FBI’s case management system
associated with any Capitol Siege investigation subject , and then export that data for review in
Relativity ( after culling it of any material arguably protected by Federal Rule of Criminal
Procedure 6(e) ). Our request to e xtract this volume of data from the FBI’s case management
system was unprecedented. A n FBI data scientist worked closely with the developers of the
FBI’s case management system to create a technological solution that would identify the relevant case materials and export the data for uploading to Relativity. In November 2021, we
understood that the technological solution had been suc cessfully deployed, and we expected to
receive over 400,000 documents for further discovery processing at about that time. Upon subsequent review of the export, however, our technology experts recognized that the solution developed was not as successful as originally believed. Although the materials were identified Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 13 of 2014
and exported, they were no longer organized in any logical fashion, i.e., by individual
investigation and in chronological order. As a result, the government was r equired to develop
additiona l technological solutions to ensure that documents were associated to appropriate case
files and properly sequenced before they were loaded to Relativity . This was an iterative process
that took time. Efforts to move quickly were also frustrated by COVID -related quarantines and
snowstorms that limited access of key personnel to the technology labs necessary to complete
their work. As a result of all the above, this entire process took far longer than was originally anticipated.
Ultimately, approximately 380,000 documents from the FBI’s case management system
were delivered to Deloitte on February 7, 2022.
17 Given the volume of material, it may take up
to ten days for it to finish being uploaded. Once the se materials complete uploading, they will
require in -depth analysis and customization so that they may be produced to the FPD database in
a standardized for mat, vastly facilitating future searching and review by defense teams . This
process is required prior to any human review and is expected to take an additional several
weeks. During this same period, we will also leverage Relativity’s analytical tools to deduplicate
files, potentially eliminating thousands of documents from the need for any further review . (A
highly preliminary review suggests that approximately one -third to one -half of the documents
may be duplicative in nature .) During this time, w e also expect to identify certain types of
documents that may be “bulk- coded” as for production without the need for additional human

17 An additional 50,000 documents that were contained in results of searches for materials
potentially protected by Rule 6(e) will be separately delivered directly to the government for
review. Based on recent experience, our search terms were intentionally designed to be
overinclusive and we expect that a sizeable portion of these materials will be sent to our
Relativity database.
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 14 of 2015
review. Once the remaining materials are ready for human review, we have a surge staffing plan
in place to perform review and redact ions, and to quality -check proposed productions.18
Another challenge we continue to confront is our plan to provide defense teams the
ability to view materials scoped from other subjects’ devices and SCA accounts, as well as law -
enforcement recorded interviews of other investigation subjects . As of today, we have provided
over 900 items in these categories to Deloitte for ingestion into the government’s Relativity
database. Processing and loading these materials is complicated because there are no cookie -
cutter solution s that may be applied to all devices and interview s. There is a wide variability in
the format of results obtained from searches o f digital devices and SCA account s. Similarly,
subject interviews were recorded in proprietary player formats unique to the recording devices
used. All this data require s thoughtful examination and decision- making to ensure it will be
accessible, organized, and searchable once it is loaded to FPD’s Relativity database . In addition,
we are providing assigned prosecutors a short timeframe to verify there are no security concerns
with the production of such items to a global database . At this juncture, a lmost 300 such items
have been uploaded to the government’s Relativity database, and we expect to begin providing
them to FPD ’s Relativity database shortly. We are continuing to process and upload such items
on a rolling basis.
10. Short -Term Discovery Plan for Certain Trials
The events of January 6 were historic, not only because they represented the first time
that American citizens had stormed the Capitol, but because the amount of information and

18 The extracted FBI case files discussed above represent the FBI’s Capitol Siege case files as of
approximately September 2021. The lessons learned from this first extraction have led to
significant improvements in the overall process. We will begin t he next extraction after we
complete application of the technological solution to the 50,000 documents that were contained in results of searches for materials potentially protected by Rule 6(e). Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 15 of 2016
evidence involved is unprecedented. As d efendants are in a better position to determine what
evidence they believe is exculpatory and will help in their defense, we maintain that our plan – to
provide the defense with all data that may contain such information, but in a m anner that will
facilitate search, retrieval, sorting, and management of that information – continues to be
reasonable and appropriate .19 Notwithstanding the challenges arising from organizing and

19 The government’s approach is also consistent with the Recommendations for Electronically
Stored Information (ESI) Discovery Production developed by the Department of Justice and
Administrative Office of the U.S. Courts Joint Working Group on Electronic Technology in the Criminal Justice System. See https://www.j ustice.gov/archives/dag/page/file/913236/download.
It is also the generally accepted approach for ensuring that arguably exculpatory materials are provided in cases involving voluminous information. Notably, every circuit to address the issue has concluded that,
where the government has
provided discovery in a useable format, and absent bad faith such as padding the file with
extraneous materials or purposefully hiding exculpatory material within voluminous
materials, the government has satisfied its obligations under Brady v. Maryland, 373 U.S. 83
(1963) and progeny. See United States v. Yi, 791 F. App’x 437, 438 (4th Cir. 2020) (“We reject
as without merit Yi’s argument that fulfillment of the Government’s obligation
under Brady requires it to identify exculpatory material.”); United States v. Tang Yuk , 885 F.3d
57, 86 (2d Cir. 2018) (noting that the “ government’s duty to disclose generally does not include a
duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence”)
(internal citations omitted); United States v. Stanford, 805 F.3d 557, 572 (5th Cir. 2015) (“ We
have previously rejected such ‘open file’ Brady claims where the government provided the
defense with an electronic and searchable database of records, absent some showing that the government acted in bad faith or used the file to obscure exculpatory material.” ); United States v.
Gray , 648 F.3d 562, 567 (7th Cir. 2011) (“The government is not obliged to sift fastidiously
through millions of pages (whether paper or electronic). . . [and] is under no duty to direct a
defendant to exculpatory evidence [of which it is unaware] within a larger mass of disclosed
evidence.”) (quotation marks and citations omitted); Rhoades v. Henry , 638 F.3d 1027, 1039 (9th
Cir. 2011) (rejecting Brady claim on the ground that the defendant “points to no authority
requiring the prosecuti on to single out a particular segment of a videotape, and we decline to
impose one”); United States v. Warshak, 631 F.3d 266, 297 (6th Cir. 2010) (“ As a general rule,
the government is under no duty to direct a defendant to exculpatory evidence within a la rger
mass of disclosed evidence”); United States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009)(same), aff’d in part, vacated in part, remanded, 561 U.S. 358 (2010); United States v. Pelullo , 399 F.3d
197, 212 (3d Cir. 2005) (“ Brady and its progeny . . . i mpose no additional duty on the
prosecution team members to ferret out any potentially defense -favorable information from
materials that are so disclosed.”); United States v. Jordan, 316 F.3d 1215, 1253- 54 (11th Cir.
2003) (concluding that the defendant’s demand that the government “identify all of the Brady and Giglio material in its possession,” “went far beyond” what the law requires). Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 16 of 2017
producing unprecedented amounts of data that are frequentl y complex in nature, our plan is
being executed promptly and in good faith. We have produced terabytes of organized and
searchable data in hundreds of cases and continue to do so as quickly as possible .
In addition, we have developed a short -term discov ery plan that will enable certain trials
to proceed before our discovery plan is substantially executed. To be clear, this is not the plan we recommend, nor one that would be workable in multiple cases or complex cases. Time spent executing this plan will reduce resources available to execute the global plan described above. Pursuant to our short -term plan, we will create lists describing substantially all our holdings .
Defense teams can review the lists to request specific items they believe may be relevant . We
expect these lists will identify the physical and digital evidence that has been accumulated across
all Capitol Siege investigations ; and c ategories of potentially discoverable information from
materials that are in our possession but have not yet been produced in global discovery, e.g., the FBI materials recently provided to Deloitte; small amounts of material from other law
enforcement agencies that played a role on the Janu ary 6, 2021; damage estimates from the
Architect of the Capitol; and grand jury transcripts.
20
In addition, pursuant to this plan, assigned prosecutors will ensure that searches based on
the defendant’s personal and/or device identifiers , as relevant, have been or will be conducted
within of the following sets of data , as appropriate :

20 If additional materials requested by defense teams are extensive, we will likely need to request
a continuance and tol ling of the Speedy Trial Act to allow the defense adequate time to prepare
for trial. This is especially true in the case of requests for the results of multiple other subjects’
digital devices and SCA accounts that have not yet been scoped for relevant i nformation.
Further, if the requested materials have not been loaded and organized within our Relativity database yet, they will be turned over in their native format and the defendant will be unable to leverage FPD’s Relativity’s search tools to review t hem.
Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 17 of 2018
1. Cell tower data from Verizon, AT&T, and T -Mobile/Sprint Cell for devices that
connected to the Capitol’s cellular network infrastructure;

2. Google account subscr iber information and location data from the Capitol and
restricted perimeter obtained pursuant to the Google geofence warrants;

3. Location data obtained by the FBI from multiple data aggregation companies ;

4. Basic subscriber information and call records obtained pursuant to applications made
to twelve cell service providers under 18 U.S.C. 2703(d) for devices that, according
to location data obtained pursuant to the Google geofence warrants , were present
within the U.S. Capitol on January 6, 2021;

5. A repository of Archived Parler posts and comments from around the period of
January 6, 2021, hosted by the Internet Archive Proj ect and retrieved by the FBI ;21

6. A repository of digital media tips maintained by the FBI ; and
7. The government’s discovery databases .

We will also perform searches of the data described above in response to defense counsel
requests for materials that we are obligated to produce under Federal Rule Criminal Procedure
16, the Jencks Act, and our Brady obligations.
22
Further, prosecutors will ensure that a facial recognition search has been performed
within a repository of images and video that the FBI continually populates , so that all identifiable
images of the defendant within that repository a t a time close to trial are produced .

21 Items 1 -4 will never be provided en masse in global discovery because they contain highly
sensitive personal identifying information for members of Congress, their staff, and law enforcement who were all lawfully present on January 6, 2021, and the process of locating that information and eliminating it from these results continues even today.

22 We will not perform searches for materials that are not required pursuant to the above -
described obligations. We advise defendants who wish to perform wider -ranging searches to
wait for the substantial completion of our global discovery plan. Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 18 of 2019
Finally, prosecutors will confirm that FBI case agents conduct searches of FBI databases
before trial, to ensure that all relevant documents concerning a specific case or any witnesses
have been identified and produced.
Conclusio n
The government has taken it s Capitol Siege discovery obligations seriously from the
inception of this investigation and has made substantial efforts to produce vast quantities of
information that is varied and frequently complex in nature in hundreds of cases. These efforts have in cluded:
• Appointing a Capitol Siege Discovery Coordinator in January 2021;
• Assembling a Capitol Siege Discovery Team consisting of experienced attorneys,
project managers, and litigation technology professionals;
• Collecting information from multiple sources involved in the response to and investigation of the Capitol Siege;
• Collaborating with FPD to develop a standard protective order for Capitol Siege
cases;
• Identifying database solutions for making terabytes of video and documents
accessible to hundreds of defendants;
• Funding defense databases and obtaining licenses for all Ca pitol Siege defense
counsel, and collaborating with FPD to execute these solutions;
• Reviewing specific discovery requests by defense counsel to ensure the appropriate
materials are prioritized for production;
• Creating protocols and procedures to ensure that (a) case -specific discovery is
provided, (b) defendants will receive complete copies of their own unscoped devices and SCA accounts upon request; (c) devices and SCA accounts are systematically filtered for attorney -client communications; (d) relevant s coped digital data and
custodial interviews will be uploaded to the government’s discovery databases for production to all; and (e) increasing access to discovery by detained defendants.

Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 19 of 2020

We have now made substantial progress in our effort to provide the defense appropriate
discovery review platforms for both documents and digital media, to populate those platforms,
and to use alternative means to provide the most relevant discovery without delay. W e will
diligently continue to transfer data to our vendor s, process it for production, and make
productions as expeditiously as possible . As we continue to implement our plan, we will
continue to file status memoranda with the Court on a regular basis.
Respectfully submitted,
MATTHEW M. G RAVES
United States Attorney
DC Bar No. 481052

By: /s/ Emily A. Miller
Chief, C apitol Siege Discovery Unit
DC Bar No. 462077
555 Fourth Street, N.W., Room 5826
Washington, DC 20530 Emily.Miller2@usdoj.gov (202) 252- 6988
By: /s/ Candice C. Wong
CANDICE C. WONG
Assistant Unite d States Attorney
DC Bar No. 990903
555 Fourth Street, N.W., Room 4816 Washington, DC 20530 Candice.Wong@usdoj.gov
(202) 252 -7849

Case 1:21-cr-00078-EGS Document 67 Filed 02/10/22 Page 20 of 20