United States v. Roybal (46 F. Supp. 3d 1127, 2014)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Joint Motion to Compel Specific Discovery, filed August 30, 2013 (Doc. 334) (“Motion”). The Court held a hearing on April 17, 2014. The primary issue is whether the Court should compel Plaintiff United States of America to disclose documents and materials that the Defendants argue are necessary to determine whether the United States has complied with the necessity, minimization, and other requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2522 (“Title III”). Specifically, the Court must determine whether Defendants are entitled to seven categories of information: (i) all pen register data that the United States collected in this case; (ii) the Title III progress reports from this case and 10 MR 149 MCA; (iii) an audio recording of the September 12, 2011, telephone call between confidential human source-1 and Defendant Christopher Roybal; (iv) financial documents and three ledgers/day planners that the United States seized from Defendant Cesar Ramirez’ house; (v) laboratory reports cited in the United States Notice of Intention to Offer Expert Testimony, filed October 1, 2013 (Doc. 357) (“Notice of Expert Testimony”); (vi) an index or table of contents for the audio recordings of the intercepted calls; and (vii) fourteen specific surveillance logs and reports that the Defendants requested at the April 14, 2014, hearing. The Court will grant the Motion in part and deny it in part. The Court will deny the Motion as to the pen register data that the United States collected in this case. The data is not discoverable under rule 16 of the Federal Rules of Criminal Procedure, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (“Franks ”), or under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“Brady ”). The Court similarly denies the Defendants’ request that it issue a rule 17(c) subpoena for this information as the Defendants have failed to establish that the information sought is relevant, admissible, and specific. The Court will deny the Motion as to the Title III progress reports from 10 MR 149 MCA, because they are not discoverable under rule 16 or Brady. Because the Court has found that Title III reports are not applications and it is irrelevant whether the United States disclosed that it had intercepted Roybal on the progress reports from 10 MR 149 MCA, the Court similarly denies the Defendants’ request for an in camera inspection of the reports. The Court will also deny the Motion as to the Title III progress reports from this case, because the reports are not discoverable under rule 16, Franks, or Brady. The Court similarly denies the Defendants’ request for an in camera review of the reports, because the Defendants have failed to establish how any information gleaned from such a review would be relevant to their defense. The Court will deny the Motion as to an index or table of contents for the audio recordings of the intercepted calls, because the Court finds no sound legal basis on which to order its production. Finally, the Court will deny the Motion as to the fourteen specific surveillance logs and reports that that the Defendants requested at the April 17, 2011 hearing, because the United States has represented that it made a good faith search for those items and did not find them. The Court will grant the Motion as to (i) the audio recording of the September 12, 2011, telephone call between confidential human source-1 and Roybal; (ii) the financial documents and three ledgers/day planners seized from Ramirez’ house; and (iii) the laboratory reports cited in the United States’ Notice of Expert Testimony. The United States has not contested the discoverability of these items and the Court finds that they are discoverable under rule 16.

PROCEDURAL BACKGROUND

The Grand Jury issued an Indictment on December 12, 2012, which charged the Defendants with: (i) conspiracy to distribute 500 grams or more of cocaine, contrary to 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), and in violation of 21 U.S.C. § 846; (ii) conspiracy to distribute marijuana, contrary to 21 U.S.C. § 841(a)(1) and 841(b)(1)(D), and in violation of 21 U.S.C. § 846; (iii) conspiracy to launder monetary instruments, contrary to 18 U.S.C. § 1956(a)(l)(B)(i) and in violation of 18 U.S.C. § 1956(h); and (v) use of a telephone to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b). See Indictment at 1, filed December 12, 2012 (Doc. 2) (“Indictment”). The Indictment does not set forth any overt acts or specific facts.

1. The Defendants ’ Motion.

The Defendants filed their Motion to compel discovery on August 30, 2013, seeking more than one hundred specific pieces of discovery from the United States. See Motion at 26-49. In response, the United States disclosed the large majority of the items that the Defendants requested — including all wiretap applications filed in this case and their accompanying affidavits; “audio copies of all of the intercepted calls, linesheets of all calls and a filtered list of calls by each individual defendant”; and “numerous reports and confidential source recordings.” United States’ Response to Defendants’ Joint Motion to Compel Specific Discovery at 2-3, filed September 30, 2013 (Doc. 352) (“Response”). The Court will not recount here the Defendants’ arguments regarding the material that the United States has already produced, but will instead focus solely on the Defendants’ arguments on the outstanding discovery issues.

The Defendants’ Motion requests that the United States disclose all Title III progress reports from this case. See Motion at 26. The Defendants explain that “the purpose of [Title III progress] reports is to ‘limitn the extent of court authorized intrusions on the privacy of oral communications.’ ” Motion at 37 (alterations in Motion but not source) (citing United States v. Chimera, 201 F.R.D. 72, 76 (W.D.N.Y.2001) (Arcara, J.) (“Chimera”). In the Defendants’ view, “the reasons for disclosing the reports outweigh any conceivable governmental interest in concealing them,” because the Defendants need the Title III progress reports to challenge the wiretap applications under both Title III and the Fourth Amendment. Motion at 37. The Defendants point out that federal district courts have granted similar motions to compel Title III progress reports. See Motion at 37 (citing United States v. Cleveland, No. 96-0207, 1997 WL 2554, at *4 (E.D.La. Jan. 2,1997) (“Cleveland”)). The Defendants also cite Chimera, in which the Honorable Richard J. Arcara, United States District Judge for the Western District of New York, stated that “Title III applications and orders, like search warrant applications and warrants, are considered documents material to the defense under Rule 16(a)(1)(C).” Motion at 37 (quoting Chimera, 201 F.R.D. at 76)) (internal quotation marks omitted).

The Defendants further request the Title III progress reports from a related case, 10 MR 149 MCA. Motion at 29. The Defendants assert, without further explanation, that, “[t]he documents and intercepted calls pertaining to 10 MR 149 MCA are relevant and necessary to the issue of whether the initial Roybal wiretap application [in this case] was tainted by what later turned out to be, by concession of the government, an invalid wiretap.” Motion at 29.

The Defendants next seek the pen register data that the United States collected in this case. Motion at 26. The Defendants argue that this information is “material to determining whether or not the government had a legitimate investigative need for the intrusive step of intercepting a vast number of private telephone conversations.” Motion at 26-27. The Defendants also point out that the “[f]ederal courts have recognized that these reports are discoverable and defendants are entitled to them.” Motion at 38. As an example, the Defendants cite United States v. Feola, 651 F.Supp. 1068 (S.D.N.Y.1987), in which the Honorable Charles L. Brieant, Chief United States District Judge for the Southern District of New York, found that “pen register tapes, and telephone records are clearly included under [Rule 16(a)(1)(C) ] as discoverable objects to which defendants are entitled.” Motion at 38 (alterations in Motion but not source) (citing United States v. Feola, 651 F.Supp. at 1144) (internal quotation marks omitted). Although the Defendants concede that, “there is some disagreement among courts on the extent of discovery obligations in this area,” they contend that, “there are compelling reasons for requiring disclosure in this ease.” Motion at 39 (citation omitted).

The Defendants’ first reason for requiring the disclosure of the pen register data in this case is that the Defendants “[w]ere subject to a wide-ranging and extensive intrusion into their constitutionally protected privacy interests as a result of the government’s decision to initiate, and renew repeatedly, electronic eavesdropping on a plethora of telephone calls without the consent or knowledge of the participants in those private conversations.” Motion at 39. The second reason is that, in the Defendants’ view, “[i]t is impossible to honor the congressional purpose for [Title III] without disclosure” of the pen register data, which “contain[s] the best material evidence of compliance with (or violation of) the statutory requirements.” Motion at 39. The Defendants conclude their argument on the discoverability of the pen register data by stating that the data would “shine light on the state of the government’s knowledge at the time of the application for the electronic surveillance authorization” and “contain indispensible evidence relevant to the issue of the necessity (or lack thereof) for this intrusive wiretap.” Motion at 39.

The Defendants finally request an audio recording of the “telephone conversation between CHS-1 and Roybal on 9-12-11 (1st Wiretap Affidavit page 23, paragraph 39),” Motion ¶ 35 at 33. The Defendants argue that this audio recording is necessary “to adequately challenge and test the veracity of the averments set forth in the wiretap applications.” Motion at 31.

2. The United States’Response.

The United States filed a Response to the Defendant’s Motion on September 30, 2013. See Response at 1. The United States first addresses the Defendants’ request for Title III progress reports from this case and 10 MR 149 MCA. See Response at 12. The United States argues that the Defendants are not entitled to any Title III progress reports — from either this case or 10 MR 149 MCA — because those reports are exempt from discovery under rule 16(a)(2) as internal government documents. See Response at 12-15 (citing Fed.R.Crim.P. 16(a)(2); United States v. Pray, 734 F.Supp.2d 158 (D.D.C.2010)). The United States contends that, “since progress reports ... represent only summaries of monitored conversations — which have been provided to defendants — defendants actually possess all of the information they seek.” Response at 14. The United States challenges the Defendants’ reliance on Chimera to support disclosure of the reports, explaining that, in Chimera, Judge Arcara denied the defendants’ request for Title III progress reports. See Response at 13 (citing Chimera, 201 F.R.D. at 77). The United States quotes from Judge Arcara’s opinion, in which he stated:

[T]he information contained in [the Title III progress reports] will not materially aid Defendants’ quest to discover potential defects in the initial applications for the Title III, or the execution or extensions of the orders. Any lack of probable cause for the issuance of the orders or a failure to otherwise comply with [18 U.S.C.] § 2518(l)(c) must be present itself on the face of the application. As the Defendants have received these documents, the [Title III] progress reports will be irrelevant, and thus immaterial, to the court’s consideration of these issues.

Response at 13 (alterations in Response but not source) (quoting Chimera, 201 F.R.D. at 77). The United States argues that, “[a]s in Chimera, the United States has in this case provided defendants ... all they need to determine whether the government complied with the requirements of Title III and the Fourth Amendment.” Response at 13.

The United States further points out that ‘“[cjourts have not required disclosure of these reports out of a defendant’s need to challenge the factual basis underlying the authorization of the wiretaps.’ ” Response at 13 (quoting United States v. Wright, 121 F.Supp.2d 1344, 1350 (D.Kan. 2000)). The United States then challenges the Defendants’ reliance on Cleveland, arguing that it “provides absolutely no support for the defendants’ request [for Title III progress reports] in this case.” Response at 13 n. 2 (citing Cleveland). Cleveland is inapposite, the United States contends, because in that case, “the district court, without any analysis, ordered the government to produce [Title III] progress reports.... Indeed, it is not even clear whether the government opposed the production of the reports.” Response at 13 n. 2.

Turning to the Defendants’ request for the pen register data, the United States argues that the Defendants “wholly fail to show how the records they seek are indeed material to their defense” under rule 16. Response at 19 (citing Fed.R.Crim.P. 16). The United States points out that “[m]ate-riality means more than that the evidence in question bears some abstract logical relationship to the issues of the case— there must be some indication that pretrial disclosure of the disputed evidence would enable a defendant significantly to alter the quantum of proof in his favor.” Response at 19 (citing United States v. Thevis, 84 F.R.D. 47 (N.D.Ga.1979)). In the United States’ view, the Defendants “have failed to meet their burden of demonstrating that disclosure is material to their defense,” because “[t]here is no indication that the [pen register data] will play any important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting in impeachment or rebuttal evidence.” Response at 20.

The United States highlights that even the federal pen register statute “suggests that defendants are in no position to challenge the pen register information.” Response at 20 (citing 18 U.S.C. § 3121(c)). The United States explains that, unlike “the wiretap statutes at 18 U.S.C. §§ 2515, 2518(10)(a), which provides a specific exclusionary remedy, the pen register statute at 18 U.S.C. § 3121(c) provides no such remedy.” Response at 20. The United States says that, “[e]ven assuming ... that the pen register data in this case was collected in violation of the pen register statute,” the data can still be admitted at trial, “because violation of the statute does not result in an unconstitutional search” or suppression under the pen register statute. Response at 20 (citing United States v. Thompson, 936 F.2d 1249 (11th Cir.1991); United States v. German, 486 F.3d 849, 853-54 (5th Cir.2007)). The United States contends that the pen register data is immaterial under rule 16 because, “even if any of the [pen register data] was illegally obtained[,] the wiretap evidence in this case would be unaffected.” Response at 21.

The United States next challenges the Defendants’ assertion that “[federal courts have recognized that [pen register data is] discoverable and that the defendants are entitled to them.” Response at 18 (alterations in Response but not in source) (internal quotation marks omitted). The United States points out that the Defendants “only rely on one case” to support this proposition — “the 1987 decision of United States v. Feola.” See Response at 18 (citing United States v. Feola, 651 F.Supp. at 1144). The United States then distinguishes United States v. Feola on two grounds. See Response at 18 (citing United States v. Feola, 651 F.Supp. at 1144). First, the United States asserts that the “defendants’ reading of Feola ignores that the discovery order in relation to the pen register tapes [in that case] was apparently in the context of the government’s use of such information as evidence at trial, not a challenge to a wiretap order.” Response at 18-19. In this case, by contrast, the United States “is not using the pen register information obtained independent of the wiretap orders themselves at trial.” Response at 19. Second, the United States argues that, “in relying on Feola, defendants assume that there are, in fact, ‘pen register tapes,’ ” when “[cjlearly technology has advanced since the district court in Feola had cause to review the technology surrounding pen registers.” Response at 19. The United States further explains that, “[ujnlike at the time of Feola when pen registers were actual printouts from a machine, the pen register process is automated to the point that all information is directly imported into the interception software.” Response at 19.

Regarding the Defendants’ request for an audio recording of the September 12, 2011 conversation between confidential human source-1 and Roybal, the United States asserts that, “[t]o the extent that any audio recordings have not been previously disclosed, they will be promptly disclosed.” Response at 23.

3. The Defendants ’ Reply.

The Defendants filed a reply to the United States’ Response on March 18, 2014. See Defendants’ Reply to the Government’s Response to the Defendants’ .Joint Motion to Compel Specific Discovery, filed March 18, 2014 (Doc. 474) (“Reply”). In their Reply, the Defendants explain that there are only six outstanding pieces of discovery: (i) an audio recording of the September 12, 2011 call between confidential human source-1 and Roybal; (ii) financial documents and three ledgers or day planners that were seized from Ramirez’ house; (iii) laboratory reports cited in the United States’ Notice of Expert Testimony; (iv) an index or table of contents of the audio recordings in this case; (v) all raw pen register data the United States collected in this case; and (vi) the Title III progress reports from this case and 10 MR 149 MCA. See Reply at 2-3.

The Defendants first argue that “the audio between the confidential human source and ... Roybal is indisputably discoverable, as are the financial documents seized from the search of ... Ramirez’s home.” Reply at 3. The Defendants assert that, “as far as the defense knows,” the United States does not dispute the discoverability of these items. Reply at 3. Because “[t]he discovery deadline has closed,” however, the Defendants contend that the United States “should be ordered to provide these items immediately, as they are still outstanding.” Reply at 3. Regarding the laboratory reports of the United States’ proposed experts, the Defendants argue that, because “the government is relying on those in its case in chief, as indicated by [the United States’ Notice of Expert Testimony], those reports should also be disclosed forthwith.” Reply at 3.

The Defendants next request a filtered list .of calls or table of contents for the audio recordings of the intercepted calls. See Reply at 3-4. The Defendants’ explain that, despite the fact that they have “been dumped with approximately 135 discs of discovery,” the United States “has not produced ... any table of contents that will allow the individual defendants to easily wade through the voluminous production.” Reply at 3. The Defendants accordingly seek the production of “a table of contents describing the general categories of [the] information” that the United States has disclosed. Reply at 3-4. In the Defendants’ view, a table of contents would “expedite the opposing party’s review of discovery, promote early settlement, and avoid discovery disputes, unnecessary expense and undue delay.” Reply at 4.

The Defendants then elaborated on their initial request for the pen register data in this case. See Reply at 4-9. The Defendants argue that the data is discoverable under rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure because it is material to their defense. See Reply at 4 (citing Fed.R.Crim.P. 16(a)(1)(E)). The data is material, the Defendants contend, for two reasons. First, the Defendants argue that the data is necessary to determine whether the United States’ wiretap applications complied with 18 U.S.C. § 2518(10)(a)’s necessity requirement. See Response at 4, 7-9. The Defendants explain that, under 18 U.S.C. § 2518(10)(a), the United States “must show that normal investigative techniques were attempted seriously and in good faith prior to resorting to an intrusive wiretap.” Reply at 7. The Defendants argue that they need the pen register data “to verify whether the government indeed used this investigative technique seriously and in good faith, and what the fruits of the technique were, in order to assess the necessity for the instant wiretaps and whether the government could have continued its investigation via normal investigative techniques.” Reply at 8. Second, the Defendants assert that the data can be used for impeachment of government witnesses. See Reply at 4.

The Defendants next assert that the pen register data is necessary to challenge the United States’ wiretap applications under Franks. Reply at 4-5. The Defendants insist that the United States “relied upon” the pen register data “to support probable cause and necessity for the wiretap.” Reply at 5. The Defendants argue that they need the data to “verify or validate statements in the application as accurate or inaccurate, as well as determine the existence of material omissions and the accuracy of conclusions in the application by the affiant.” Reply at 5. In the Defendants’ view, “[i]t is unreasonable to expect the defense to make challenges to a wiretap allocation and meet his [sic] burden under Franks ... if they are denied the very evidence on which the issuing judge purportedly relied to issue the order.” Reply at 5 (citing Franks, 438 U.S. at 169, 98 S.Ct. 2674). The Defendants contend that United States v. Tigano, No. CR 08-281S, 2010 WL 2612315 (W.D.N.Y. June 25, 2010) (Scott, M.J.), supports using Franks in this context to compel the United States to produce the pen register data. See Reply at 4. The Defendants explain that, in United States v. Tigano, the Honorable Hugh Scott, United States Magistrate Judge for the Western District of New York, stated that “[r]eview of the validity of a criminal warrant, under the ‘four corners’ standard ... requires review of the evidence which was presented to the issuing magistrate. Thus, absent extenuating circumstances, such material is subject to discovery.” Reply at 4 (citing United States v. Tigano, 2010 WL 2612315, at *1 n. 2 (citing Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Franks)).

The Defendants then turn to their request for the Title III progress reports from 10 MR 149 MCA. See Reply at 9-18. The Defendants first explain that, under 18 U.S.C. § 2518(6), a judge who grants a wiretap application may require the United States to submit Title III progress reports to the court “showing what progress has been made toward achievement of the authorized objective [of the wiretap] and the continued need for interception.” Reply at 9-10 (quoting 18 U.S.C. § 2518(6) (alteration in Reply but not in source) (footnote omitted) (emphasis in original)). The Defendants observe that, after reviewing the reports, a judge may cut off the wiretap if he or she finds the wiretap is no longer necessary or has been ineffective at accomplishing the investigation’s objectives. See Reply at 10 (citing United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974)).

The Defendants contend that, because Title III progress reports are a “request to the court by the government for an extension of the authorization to intercept,” the reports are wiretap applications under Title III. See Reply at 10. The Defendants point out that 18 U.S.C. § 2518(l)(e) requires the United States to provide in all wiretap applications “a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application ... involving any of same persons, facilities or places specified in the application.” Reply at 10 (citing 18 U.S.C. § 2518(l)(e)). Because the Title III progress reports are applications, the Defendants argue, 18 U.S.C. § 2518(l)(e) requires that the United States provide all of the information about person x from prior Title III progress reports in all later wiretap applications that target person x. Reply at 11 (citing 18 U.S.C. § 2518(l)(e)) (internal quotation marks omitted). The Defendants argue that the progress reports from 10 MR 149 MCA are discoverable because they would show that the United States “failed to comply with [18 U.S.C. §] 2518(l)(e) by neglecting to report” in the wiretap applications in this case that Roybal “was intercepted several times and in fact identified on the wiretap in 10 MR 149 MCA, which ended up being a tainted wiretap.” Reply at 11.

The Defendants acknowledge that courts “have refused to order production” of Title III progress reports. Reply at 12. “One key distinction” between those cases and this case, the Defendants note, “is that the purpose for the request in this case is different.” Reply at 12. The Defendants explain that, “[i]n other cases, defendants request these progress reports in order to ensure that the government complied with minimization or to ensure that they sufficiently reported to the issuing judge.” Reply at 12 (citing United States v. McCafferty, 772 F.Supp.2d 863 (ND.Ohio 2011)). In this case, by contrast, the Defendants seek the Title III progress reports to demonstrate that the United States failed to disclose in the wiretap applications in this case that Roybal “was intercepted on the prior tainted wiretap.” Reply at 12-13. The Defendants also point out that, “[i]f an original wiretap was improvidently granted, the government cannot use the fruits of.that wiretap to obtain authorization for later interceptions.” Reply at 13 (citing United States v. Giordano, 416 U.S. 505, 529-30, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974)).

The Defendants next address the United States’ “reliance on a work product privilege exclusion in Rule 16 to avoid production” of the Title III progress reports. Reply at 15 (internal quotation marks omitted). The Defendants contend that “these reports are not internal,” because “they are sent to a court in support as an extension of the affidavit for the wiretap and the court relies on [them] in deciding whether to continue allowing the interception or to shut it down.” Reply at 15. The Defendants assert that, even if a work-produet privilege covers these reports, the United States has waived any claim of privilege because the United States Attorney’s Office for the District of New Mexico has produced these documents in other cases. .Reply at 15. The Defendants explain that “[c]ourts will imply waiver [of a privilege] when a party claiming the protection has voluntarily disclosed work product to a party not covered by the work-product doctrine.” Reply at 15 (citing United States v. Ary, 518 F.3d 775 (10th Cir.2008)). In the Defendants’ view, the United States “cannot claim that these reports are privileged because they have freely disclosed them in the past.” Reply at 15. As an example, the Defendants cite United States v. Angel LNU, CR 13-2028 JAP, in which the United States disclosed the Title III progress reports “without even a request” from the defense. Reply at 16 (citing United States v. Angel LNU, CR 13-2028 JAP).

Last, the Defendants challenge the United States’ argument that Title III progress reports are “protected communications concerning legitimate trial tactics.” Reply at 16. The Defendants argue that the United States “has not explained ... [how Title III progress] reports that are ordered to be produced by the court ... could have any trial tactics within them.” Reply at 16. The Defendants point out that “communicating the prosecution’s tr[ia]l tactics is not the purpose of [Title III progress] reports, so it is not as if that fact is something that is implied.” Reply at 16. The Defendants conclude their argument on the Title III progress reports by suggesting that, “[i]f the court were concerned with any privacy issues in disclosing the reports,” the Court can either restrict the production of the reports to the attorneys in the 10 MR 149 MCA case or review the documents in camera “to ascertain that ... Roybal was indeed reported in [them].” Reply at 18.

4. The April 17, 2014 Hearing on the Motion.

The Court held a hearing on April 17, 2014. See Transcript of Hearing (taken April' 17, 2014) (“Tr.”). Before the parties began their arguments, the Court asked for an overview from the United States on pen register data. See Tr. 10:4-16:1 (Long, Court). The United States defined pen register data as a list of every outgoing call made from a particular telephone number from the moment the judge authorizes the United States to obtain the data to the end of the court-authorized period. See Tr. at 13:2-11 (Long, Court). Trap and trace data, the United States explained, is a list of every incoming call made to a particular telephone number from the moment the judge authorizes the United States to obtain the data until the end of the court-authorized period. See Tr. at 13:11-20 (Long, Court). The United States explained that telephone toll data, by contrast, is historical; it is a list of all incoming and outgoing calls that were made on a particular telephone number during the court-authorized period, but before the United States received authorization to obtain pen register and trap and trace data. See Tr. at 14:3-7 (Long). The Court clarified that toll records are backward-looking, and pen register and trap and trace are forward-looking. See Tr. at 14:8-10 (Court). The Court further clarified that a judge reviewing a wiretap application does not receive the raw pen register data, but instead receives only summaries of the data prepared by the United States. See Tr. at 14:25-16:1 (Long, Court).

The parties then took up the Defendants’ request for the raw pen register data from this case. See Tr. at 16:2-48:19 (Garcia, Johnson, Nault, Long, Robins, Court). The Defendants reiterated their argument that the data is material under rule 16, because it is necessary to show that the United States violated 18 U.S.C. § 2518(10)(a)’s necessity requirement. See Tr. at 18:13-19:15 (Garcia). The Defendants asserted that this data is particularly important to determine what occurred during a four-month period in which the United States was not using a wiretap — from October 2011 to February 2012 — because the United States has thus far failed to provide a summary of the pen register and telephone data collected during that period. See Tr. at 26:10-17 (Garcia); id. at 29:12-25 (Garcia).

The Defendants next stated that the data is discoverable, because it could lead to exculpatory material under Brady and Kyles v. Whitley. See Tr. at 18:18-20 (Garcia). As an example, the Defendants pointed out that the United States misidentified Defendant Richard Sanchez as the person using telephone number 928-259-3958 in a summary of pen register data that was part of the affidavit for the wiretap of Ramirez phone 4. See Tr. at 21:7-23:17 (Garcia); Affidavit of Erlinda O. Johnson, in United States v. Christopher Roybal et al. CR 12-3182 JB, submitted to the Court at the April 17, 2014 hearing as Defendants’ Hearing Exhibit H. The Defendants explained that they have “a specific reason to be skeptical” of the United States’ summaries of pen register data in light of this misidentification. Tr. at 24:3-7 (Garcia). The Defendants then revisited their argument that they are entitled to the raw pen register data to challenge the wiretap applications under Franks. See Tr. at 29:3-30:8 (Garcia). The Defendants concluded their argument on the pen register data by pointing out that the data is not privileged and many United States Attorneys’ offices routinely produce this data voluntarily. See Tr. at 43:19-44:2 (Robins).

The Defendants also asked whether the United States had in its possession fourteen specific surveillance reports and logs. See Tr. at 27:5-17 (Garcia); id. at 28:2-29:2 (Robins); id. at 41:18-42:5 (Garcia); List of Surveillance Reports and Logs, Numbered 146-160, submitted to the Court at the April 17, 2014 hearing. The Defendants explained that “[w]e are at a point now where this case is getting pretty old, discovery is closed, and we would like the Court to order the Government to state whether this material does exist and to disclose it, or whether it doesn’t exist.” Tr. at 27:11-16 (Garcia). Upon questioning from the Court, the United States responded that it had made a good-faith search for those items and could not find them. See Tr. at 37:16-38:1 (Long, Court).

Turning to the Defendants’ request for the raw pen register data, the United States first pointed the Court to United States v. Harding, in which the Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, denied a similar discovery request: Tr. at 31:7-16 (Long). The United States then attempted to distinguish United States v. Tigano, arguing that it is “confusing at best.” Tr. at 32:18 (Long). The United States explained that it was unclear whether Judge Scott even ordered the United States to disclose the raw data underlying the warrant application in that case or only ordered the application materials that referred to the raw data. See Tr. at 31:18-33:4 (Long). The United States asserted that, “to the extent that the defense is arguing that this is the authority to state that anytime there’s material referenced in an affidavit, they’re entitled to it under Rule 16, it’s a misreading and it’s contrary to all other case law throughout the nation.” Tr. at 32:24-33:4 (Long). The United States then dismissed United States v. Feola, stating that the discussion in that case was “far from insightful” and “not particularly useful,” in light of the fact that it was decided in 1987, and that there was different technology for obtaining pen register data at that time. Tr. at 33:8-20 (Long).

In this case there actually was a Franks motion before the Court, and the Court said that the defendant had not met the substantial preliminary showing entitling them to a Franks hearing .... the defendant had also requested discovery to show that there was a Franks violation. And in that case, the Court held, absent the showing, the substantial preliminary showing, the defendant is not entitled to wide-ranging discovery to canvas for evidence in support of this motion to suppress.

The United States explained that the Defendants could not properly obtain the pen register data to challenge the wiretap application in either a motion to suppress or Franks context. See Tr. at 33:23-36:1 (Long). The United States contended that the Defendants are entitled to an eviden-tiary hearing under Franks only after making a “substantial preliminary showing that there was a material omission or misrepresentation” in the wiretap applications. Tr. at 34:6-8 (Long). Because the Defendants had neither filed a Franks motion nor made the requisite substantial preliminary showing to obtain an evidentiary hearing, the United States argues, the Defendants cannot obtain the pen register data under Franks. See Tr. at 34:24-25 (Long). The United States asserted that the Defendants also could not obtain the pen register data in a motion to suppress context, because, when deciding whether the wiretap satisfied 18 U.S.C. § 2518’s necessity requirement, a court is limited to the four corners of a wiretap application. See Tr. at 35:5-36:1 (Long).

The Court then inquired whether the United States had disclosed the raw pen register data to a judicial officer in this case. See Tr. at 38:21-24 (Court). The United States said that it had not. See Tr. at 38:25 (Long). The Court next noted that the United States’ refusal to disclose the pen register data was “a little bit of a cutback on [the United States’] open file policy.” Tr. at 44:24-25 (Court). The Court explained, however, that it was “having a difficult time figuring out how” the defendants could use this information in a motion to suppress context where the Court is “confined to the four corners of the wiretap application.” Tr. at 45:7-14 (Court). Addressing the Defendants’ Franks argument, the Court stated that, “the defendant has to have information in its possession to get a Franks hearing” rather than acquiring it “through discovery from the government.” Tr. at 46:1^4 (Court). Regarding the United States’ disclosure obligations under Brady, the Court warned that the United States “should be very sensitive to making sure that ... it’s confident that there’s nothing in these toll records or this information that’s being sought with this request” that is either “exculpatory or impeachment material.” Tr. at 46:5-14 (Court). The Court noted, however, that the United States is “probably the one person in the room that is in the best position to make sure that’s not the case” and that, “based upon the representations of the government,” the Court was “not in a position to override that.” Tr. at 46-17-21 (Court). The Court accordingly held that it would deny the Defendants’ request for the pen register data without prejudice, and explained that, if the defendants “make clear in the motion to suppress why [they] were being handicapped in that process, or down the road with the Franks hearing,” the Court would “relook at it in a more concrete fashion.” Tr. at 48:1-6 (Court).

The parties then took up the Defendants’ request for the Title III progress reports from 10 MR 149 MCA. See Tr. at 49:9-112:3 (Johnson, Long, Court). The Defendants’ reiterated the arguments from their Reply, asserting that they are entitled to the disclosure of the Title III progress reports from 10 MR 149 MCA to determine whether those reports disclosed that the United States intercepted and identified Roybal, and, in turn, whether the United States violated 18 U.S.C. § 2518(l)(e) by failing to disclose in the wiretap applications in this case that Roy-bal had been previously identified in 10 MR 149 MCA. See Tr. at 49:9-71:2 (Johnson, Court). The Defendants acknowledged that there is no case law which finds that Title III progress reports are — or are not — Title III applications subject to 18 U.S.C. § 2518(l)(e)’s disclosure requirements. See Tr. at 70:23-71:6 (Johnson). The Defendants argued, however, that a plain reading of Title III indicates that Congress intended them to be characterized as such. See Tr. at 70:23-71:6 (Johnson). The Defendants pointed to the fact that, when a judge is presented with Title III progress reports, “there is a space for the judge to sign and for the judge to authorize the continued interception.” Tr. at 69:7-9 (Johnson). The Defendants concluded their argument on the Title III progress reports from 10 MR 149 MCA by stating that withholding these reports would constitute a Brady violation “because it goes to the issue of punishment.” Tr. at 66:20-22 (Johnson).

The Defendants next addressed their request for the Title III progress reports that the United States submitted in this case. See Tr. at 71:7-77:7 (Johnson). The Defendants stated that they are entitled to this information for three reasons. First, the Defendants identified “a number of omissions and potential misrepresentations” in the wiretap applications in this case — including the United States’ omission in the wiretap application in this case that Roybal was initially intercepted on the tainted wiretap in 10 MR 149 MCA. Tr. at 71:11-12 (Johnson). The Defendants contended that these “omissions and misrepresentations” constitute “a good faith showing to the Court that a Franks v. Delaware hearing would be appropriate.” Tr. at 73:6-8 (Johnson). Second, the Defendants assert the reports are material to their defenses — and thus discoverable — under rule 16. See Tr. at 73:21-74:19 (Johnson). Finally, the Defendants contend that the reports are discoverable under 18 U.S.C. § 2518(9). See Tr. at 74:27.

Responding to the Defendants’ request for the Title III progress reports in this case and in 10 MR 149 MCA, the United States first reiterated that district courts have consistently held that the reports are not discoverable, because they are mere summaries of information that the United States has already disclosed. See Tr. at 80:8-82:3 (Long). The United States also asserted that the Defendants already have “all they need to form the basis of whatever challenge they’re going to make” in a motion to suppress. Tr. at 83:17-19 (Long). The United States then addressed the Defendants’ argument that the Court should consider Title III progress reports to be applications that the United States must disclose in future applications under 18 U.S.C. § 2518(l)(e). See Tr. at 85:13-88:8 (Long, Court). The United States argued that, although extensions of wiretap orders are applications and therefore must be. disclosed under 18 U.S.C. § 2518(l)(e), Title III progress reports are not. See Tr. at 85:13-88:8 (Long, Court). The United States then stated that, because it did not file any wiretap extensions in 10 MR 149 MCA after Roybal was identified on that wiretap, there was never an application in that case that had Roybal’s name on it. See Tr. at 88:3-18 (Long). The United States contends that it, therefore, had no duty under 18 U.S.C. § 2518(l)(e) to mention that Roybal was previously intercepted in 10 MR 149 MCA in the wiretap applications in this case. Tr. at 88:16-18 (Long).

The Court inquired why the United States should not have to disclose the Title III progress reports to the Defendants if it gives the reports to the Court. See Tr. at 90:12-22 (Court). The United States stated that it is “in the legal right in this case to not produce them” and pointed the Court to the extensive case law under which courts have held that the United States does not have to disclose the Title III progress reports, reasoning that the reports are merely summaries of information that the defendants already have. • Tr. at 91:3-16 (Long). The Court asked the United States how the Defendants receive all of the information that forms the basis of the Title III progress reports, and the United States responded that the Defendants receive a copy of all pertinent and nonpertinent calls through discovery. See Tr. at 101:25-102:23 (Long, Court). The Court then explained that it was reviewing a Title III progress report from the previous year and noted that the report did not request the Court to approve the United States’ continued use of the wiretap. See Tr. at 103:4-25 (Court).

The Defendants suggested that, “if the Court is not inclined to order the Government to produce [the Title III progress reports] to the defense counsel,” the Court should order an in camera inspection. Tr. at 107:21-23 (Johnson). The Defendants then pointed out that Title III progress reports also detail any problems the United States had with the wiretap during the previous period of interception — for instance, whether the United States accidentally started the wiretap before receiving court authorization. Tr. at 110:8-19 (Johnson). The Defendants contended that this information “would not be included in any of the other documents except in the periodic report.” Tr. at 110:19-20 (Johnson). The Defendants then concluded their argument on the Title III progress reports by noting that the Supreme Court of the United States of America stated in United States v. Kahn that the purpose of Title III progress reports is “so that any possible abuses might be quickly detected and halted” — the same purpose as a wiretap extensions and an affidavit filed in support of an initial wiretap. Tr. at 111:12-112:3 (Garcia).

At the end of the hearing, the Defendants explained two additional discovery requests. First, the Defendants asked that, if the Court was not inclined to grant the Defendants’ motion to compel the pen register data, the Court alternatively issue a rule 17(c) subpoena for the Defendants to obtain the data. See Tr. at 112:16-21 (Garcia). Second, the Defendants requested that the United States produce an index for the 132 disks of discovery that it has already provided to the Defendants. See Tr. at 113;1 — 114:11 (Robins).

In response to the Defendants’ request for an index, the United States submitted two spreadsheets detailing the audio recordings of all of the intercepted calls in this case. See United States’ response to certain items requested in motion to compel and/or follow up email from Monnica Garcia, submitted at the April 20, 2014 hearing as Government’s Exhibit 2 (“Government’s Hearing Exhibit 2”); Excel Spreadsheet of Discovery Provided by the Unitéd States (Dated Feb. 6, 2014), submitted by the United States at the April 20, 2014 hearing as Government’s Hearing Exhibit 3 (“Government’s Hearing Exhibit 3”). After submitting the spreadsheets, the United States explained that “[i]t’s all we have in this case. Anything else that the defendant asked for would be me sitting in a room compiling it, and I guess my position is [the Defendants] can compile it just as easily.” Tr. at 115: 7-11 (Long).

Upon questioning from the Court, the Defendants stated that the hearing had covered everything in the Defendants’ Motion and that there were no outstanding discovery issues. See Tr. at 117:7-14 (Johnson, Court). The Court then explained that it was “having some difficulty with the arguments and forcing the Government to produce” the Title III progress reports. Tr. at 116:6-8 (Court). The Court indicated, however, that it was troubled by the fact that, unlike the pen register data, Title III progress reports have been presented to judges but are not being produced to the Defendants. Tr. at 116:23-117:5 (Court). The Court said that it was not seeing how it could grant the Defendants’ request, but noted that it is “going to try to look for a way, because I think that’s probably a fair way to do things.” Tr. at 118:17-20 (Court).

LAW REGARDING RULE 16

Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure provides:

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:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item it its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

Fed.R.Crim.P. 16(a)(1)(E). Although rule 16’s language is permissive, it does not authorize “a blanket request to see the prosecution’s file,” and a defendant may not use the rule to engage in a “fishing expedition.” United States v. Maranzino, 860 F.2d 981, 985-86 (10th Cir.1988) (citing Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957)). Rule 16 also does not obligate the United States to “take action to discover information which it does not possess.” United States v. Badonie, No. CR 03-2062 JB, 2005 WL 2312480, at *2, 2005 U.S. Dist. LEXIS 21928, at *5-6 (D.N.M. Aug. 29, 2005) (Browning, J.) (quoting United States v. Tierney, 947 F.2d 854, 864 (8th Cir.1991)) (internal quotation marks omitted). Nor is the United States required to secure information from third parties. See United States v. Gatto, 763 F.2d 1040,1048 (9th Cir.1985) (holding that rule 16 does not contain a due diligence element requiring a prosecutor to search for evidence not within the United States’ possession, custody, or control).

Evidence is “material” under rule 16 if “there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, ... or assisting impeachment or rebuttal.” United States v. Graham, 83 F.3d 1466, 1474 (D.C.Cir.1996) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993)) (internal quotation marks omitted) (citation omitted). “Although the materiality standard is not a heavy burden, the Government need disclose rule 16 material only if it enables the defendant significantly to alter the quantum of proof in his favor.” United States v. Graham, 83 F.3d at 1474 (citing United States v. Caicedo-Llanos, 960 F.2d 158, 164 n. 4 (D.C.Cir. 1992)) (internal quotation marks omitted).

Courts regularly find pen register data is discoverable under rule 16 where the United States intends to use the data at trial. See, e.g., United States v. Feola, 651 F.Supp. at 1143-44 (granting defendant’s motion to compel all “telephone and/or other public or private communications records that the Government intends to use at trial”), aff'd, 875 F.2d 857 (2d Cir.1989); United States v. Shakur, 543 F.Supp. 1059, 1061 (S.D.N.Y.1982), rev’d on other grounds sub nom. United States v. Lumumba, 741 F.2d 12 (2d Cir.1984) (“The government shall provide to the defendants all telephone records and results of pen register devices utilized at various sites and which will be offered in evidence.”). The United States also commonly discloses pen register data to defendants voluntarily. See, e.g., United States v. Mullen, 243 F.R.D. 54, 60 (W.D.N.Y. 2006) (“[T]he government agreed to provide copies of the pen register relating to the charges against [the Defendant].”); United States v. Beverly, No. 87 CR 521, 1988 WL 20027, at *1 n. 1 (N.D.Ill. Feb. 26, 1988) (“The government has agreed to ... provide all pen register records.”). The Court was unable to find a single case, however, in which a court determined that pen register data was discoverable because it was material to the accused’s defense under rule 16.

By contrast, courts have found raw pen register data is not discoverable under rule 16 where (i) the defendant failed to establish that the data was material; (ii) the United States had already provided the defendant summary reports of the data; or (iii) the United States did not intend to use the data at trial. See, e.g., United States v. Robinson, No. 09-CR-103S(Sr.), 2010 WL 2595314, *8 (W.D.N.Y. June 24, 2010) (denying the defendants’ request for “any audio and/or pen registered [sic] tapes, logs, [and] transcriptions,” in light of the fact that the United States had already provided the defendants with the underlying wiretap applications, Title III progress reports, and recordings of intercepted calls); United States v. Conner, No. 91-10028, 1991 WL 268704, at *2 (D.Kan. Nov. 6, 1991) (Theis, J.) (finding the defendant’s motion for disclosure of pen register information under rule 16 was moot, because “the government has responded that it does not intend to use evidence gathered through the use of pen registers”); United States v. Cleveland, No. 96-207, 1997 WL 187384, at *4 (E.D.La. April 16, 1997) (denying the defendant’s motion to compel pen register data on the grounds that the defendant “failed to identify the conversations for which it seeks such information and the defense has failed to make a prima facie showing that the conversations are material to the defense.”). In United States v. D’Arco, No. 90 CR 1043, 1991 WL 140921 (N.D.Ill. June 26, 1991), for example, the Honorable George W. Lind-berg, United States District Judge for the Northern District of Illinois, denied a defendant’s motion to compel pen register data, because the defendant had not established why the requested information was material,' and “failed to cite any rule or case law in support of his request for disclosure of pen registers.” 1991 WL 140921, at *2. Judge Lindberg further explained that the defendant “does not have the right to access the government’s files or search for exculpatory material”; instead, it is the United States’ responsibility to “review its files and produce what is exculpatory.” United States v. D’Arco, 1991 WL 140921, at *2 (citing United States v. Parenti 326 F.Supp. 717, 721 (E.D.Pa.1971), aff'd, 470 F.2d 1175 (3d Cir. 1972); United States v. Addonizio, 451 F.2d 49, 64 (3d Cir.1971)).

LAW REGARDING RULE 17 AND SUBPOENAS

Rule 17(c) of the Federal Rules of Criminal Procedure provides:

(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.

Fed.R.Crim.P. 17(c). A criminal subpoena “is not a discovery substitute. There are federal rules that address the proper method for parties to conduct discovery.” United States v. Badonie, No. CR 03-2062 JOB, 2005 WL 2312472, at *1 (D.N.M. Aug. 10, 2005) (Browning, J.). See Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951) (explaining that a criminal subpoena is “not intended to provide an additional means of discovery”). “It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms.” Bowman Dairy Co. v. United States, 341 U.S. at 220, 71 S.Ct. 675. The “chief innovation” of the criminal subpoena is “to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials.” Bowman Dairy Co. v. United States, 341 U.S. at 220, 71 S.Ct. 675.

Moreover, as the Supreme Court held in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), “a criminal subpoena requires that the requested information have: (i) relevancy; (ii) admissibility; and (iii) specificity.” 418 U.S. at 700, 94 S.Ct. 3090. “The subpoena cannot be for a general ‘fishing expedition,’ and the requested information must be necessary to properly prepare for trial.” United States v. Nixon, 418 U.S. at 700, 94 S.Ct. 3090 (citing United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y.1952) (Weinfeld, J.)).

LAW REGARDING THE DISCLOSURE OF TITLE III PROGRESS REPORTS

The United States must comply with a number of requirements to obtain a wiretap. See 18 U.S.C. §§ 2516(1), 2518(1), (3)-(4). One of those requirements is that all wiretap applications — including applications for an extension of a wiretap order— must provide:

A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application.

18 U.S.C. § 2518(l)(e). Separate from the application requirements detailed in 18 U.S.C. §§ 2516(1), 2518(1), (3)-(4), a judge “may require” the United States to submit periodic reports throughout the duration of the wiretap that “show what progress has been made toward achievement of the authorized objective and the need for continued interception.” 18 U.S.C. § 2518(6).

The United States commonly provides, these Title III progress reports to defendants voluntarily. See, e.g., United States v. Newton, No. 08-CR-69S(Sr.), 2009 WL 2876169, at *8 (W.D.N.Y. Sept. 8, 2009) (“[CJounsel for the government noted that ... he had provided counsel for the defendants with copies of ... progress minutes/reports that were provided to the judge who issued the underlying [wiretap] warrant.”); United States v. Vastola, 670 F.Supp. 1244, 1283-84 (D.N.J.1987) (“The government has agreed to provide the defendants with 10-day reports.... ”). Courts have, however, generally refused to order the United States to disclose them. See, e.g., United States v. Rose, No. CR 11-10062 NMG, 2012 WL 1744757, at *2 (D.Mass. May 6, 2012) (Boal, M.J.); United States v. Hurtado, 2007 WL 3171417, at *6 (E.D.Wis. Oct. 26, 2007); United States v. Wright, 121 F.Supp.2d at 1350; United States v. Birdman, No. 92-00133-07, 1992 WL 203318, at *1 (E.D.Pa. Aug. 14, 1992) (Waldman, J.). In United States v. Orozco, 108 F.R.D. 313 (S.D.Cal.1985), for example, the Honorable J. Lawrence Irving, United States District Judge for the Southern District of California, denied the defendant’s discovery request for Title III progress reports, explaining:

[Disclosure of progress reports is not necessary in order to determine whether the government complied with the statutory requirements of 18 U.S.C. § 2510 et seq. Progress reports are, for the most part, a summary of information already provided to defendants, i. e. the tapes, summaries and logs. Those items already provided to defendants are the original and best sources of information regarding statutory compliance.

Addressing defendants’ claims that progress reports might contain Brady, Jencks or Rule 16 material, it must be remembered that such reports are, for the most part, summaries of interceptions and do not provide any statements or exculpatory information not also required to be disclosed in its original form.

108 F.R.D. at 316. In United States v. Marchman, 399 F.Supp. 585 (E.D.Tenn. 1975), the Honorable Robert L. Taylor, United States District Judge for the Eastern District of Tennessee, similarly concluded:

Defendant seeks access to certain ‘progress reports’ filed with the Court by the United States Attorney pursuant to 18 U.S.C. § 2518(6). Access to portions of the materials under seal is controlled by § 2518(8)(d) and it appears that access to these reports is unnecessary since defendant has been given access to the Application and Order and has had the opportunity to listen to all of the tapes of the intercepted communications. The so-called progress reports are not required by law and the matter is left to the discretion of the issuing judge.

399 F.Supp. at 586 (citation omitted). Denying a similar motion in United States v. Wright, the Honorable Sam A. Crow, Senior United States District Judge for the District of Kansas, reasoned that, “[prepared as a summary of information to assist the court in judging compliance with its authorization order, progress reports do not provide a defendant with any original information beyond what can be found in the tapes, transcripts, and monitor log sheets.” 121 F.Supp.2d at 1350 (citing United States v. Orozco, 108 F.R.D. at 316).

The Court found only two cases in which courts ordered the United States to disclose Title III progress reports. First, in Cleveland, the Honorable Sarah S. Vance, Chief United States District Judge for the Eastern District of Louisiana, ordered, without explanation, the United States to disclose “the 10-day progress reports filed by the government with the judges who issued the surveillance orders.” Cleveland, 1997 WL 2554, at *4 (citing 18 U.S.C. § 2518(8)(d)). Second, in United States v. Willis, 578 F.Supp. 361 (N.D.Ohio 1984), the Honorable Frank J. Battisti, Chief United States District Judge for the Northern District of Ohio, ordered the United States disclose Title III progress reports for in camera review. See 578 F.Supp. at 364-65. Chief Judge Battisti first required the defendant to make a factual showing that the court erred in extending the wiretaps and that the reports might contain exculpatory evidence. See 578 F.Supp. at 364. After the defendant made this threshold showing, Chief Judge Battisti ordered an in camera