Massey Mine Defense Team Wins the Discovery Lottery–But Then Can’t Collect on It?

July 27, 2015

Win red diceA few weeks ago, I wrote about some important discovery motions in the Massey Mine trial unfolding in the Southern District of West Virginia.

The defense had a nice win recently on one of those motions.

But according to a recent filing in the case, the government has not complied with the court’s order granting the defense motion. So, here we go again.

Quick Summary

A quick summary for those of you too lazy to read my prior post. (Hey, it’s summer, I don’t blame you–let’s keep it easy breezy.)

The government had produced to the defense over 4 million pages of discovery. The rule of thumb is that one banker’s box of documents contains about 2000 pages. The government therefore produced approximately 2000 boxes of documents. Even for a well-funded defendant using a big law firm, this is a lot of documents to review and analyze before trial.

The government did not identify which documents were Brady material and left it to the defense to  find the proverbial needle in the haystack.

Not happy about this situation, the defense asked the court to order the government to specifically identify Brady material, as well as to identify other categories of documents, within the 4 million pages.

It was, essentially, a “hey, a little help here!” request. The government did not look kindly upon the request, and the dispute ended up in front of the court.

The Court’s Order

On June 12, the district court issued an order on these motions. The defense won some and lost some.

The court’s order held that

the United States should specifically designate any known Brady material as such and disclose the same to defense counsel. In other words, without more, the United States does not comply with the requirement of Brady by merely including all known Brady material within the four million plus pages of discovery.

The court reasoned that the government was in a much better position than the defense to know “what evidence may be exculpatory and/or impeachment material under Brady.” Plus, the government has a separate burden to produce documents under Brady and under Rule 16.

This is the right result and very good news for the defense. It forces the government to identify for the defense what weaknesses the government sees in its own case and to do the work that Brady requires, rather than simply dumping 4 million documents on the defense and metaphorically wiping their hands of the problem.

The court denied the defense’s “request for the identification and grouping of specific information under Rule 16” because it is “unsupported by both the rule and pertinent case law.” So, even though the government must identify Brady material, it need not identify any other categories of information to the defense.

What Happened?

Since June 12, there has apparently been a bit of wrangling between the defense and the government about how the government will comply with the court’s order on Brady.

The wrangling did not end with an agreement. Instead, the defense filed a motion to compel on July 8. It claims that the government has not followed the court’s order. According to the defense’s second motion to compel,

the government misapplies Brady, fails to designate all items in its production that meet the proper definition of Brady and with holds material–not currently possessed by the defense–that it was obliged by the Court’s order and the Constitution to produce.

The government sent the defense a letter on June 22. The government’s letter claimed that evidence that Mr. Blankenship and alleged co-conspirators had a “concern for safety” was not exculpatory.

(Note: The government’s theory of the case is that Mr. Blankenship et al. had no concern for the mine’s safety, only for their returns on investment, and thus allowed the mines to operate unsafely. This lack of concern for safety led to the deadly blast in 2010. So, if there are contemporaneous documents showing that, in fact, Mr. Blankenship cared deeply about the safety of the mine, then those documents strike me as exceedingly exculpatory. For example, check out the last page of the government’s letter. I think a jury might be persuaded by these memos that there was a concern for safety by management, at lesa ton paper. But I digress.)

The government also said in the June 22 letter that evidence showing that the mine “complied with mine safety” was not exculpatory. Finally, the government’s letter states that “the United States does not know of any evidence that truly tends to exculpate Defendant.”


Is there really a prosecutor who doesn’t think that there is a single piece of evidence that exculpates a defendant, particularly in a complex white collar case with a fair amount of gray area on intent?

The government did provide some summaries of attorney proffers and a list of items that “Defendant might claim are Brady material.”

The defense asks the court to

  • provide the defense with an opportunity to present ex parte the results of its investigation that shows that the government failed to disclose certain exculpatory information
  • order the government to produce all handwritten notes and typewritten notes of witness interviews and attorney proffers
  • order the government to produce or identify all Mine Safety and Health Administration (MSHA) documents that contain exculpatory information
  • order the government to identify all Brady material, using the correct standard.

I have no inside baseball here but the first request could be a bombshell. If the defense can show that the government has deliberately withheld clear Brady material, this is a huge problem. Now, the court will likely allow the government to cure the problem by producing it now, but this would be yet another post-Stevens black mark against the government.

Joint Motion for Continuance

Separately, the court granted the parties’ request for a continuance of the case. The trial was set to begin on July 13th. It will now begin on October 1st.

This means that there is plenty more time for motions to be filed.

Published by Kropf Moseley

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