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UNITED STATES v. SHIELDS

June 5, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID J. SHIELDS and PASQUALE F. DELEO, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Pending before the Court are defendant David J. Shields' Motion for Preservation and Production of Agents' and Attorneys' Notes and Draft Transcripts of All Title III Tapes and defendant Pasquale F. DeLeo's Motion for Preservation and Production of Notes of Agents and Attorneys. For the reasons set forth below, the motions are granted in part and denied in part.

 II. ANALYSIS

 A. Agent Notes

 Shields and DeLeo seek the preservation of all notes made by government officials during the investigation of this case, including "all rough notes, memoranda, resumes, synopses, etc. which were taken as part of their investigation, whether or not the contents of the same were incorporated into any official records such as, but not limited to, FBI Form 302." (Shields Motion at 1; DeLeo Motion at 1.) In addition, Shields and DeLeo seek the production of any notes associated with witness statements at such time as the government produces other materials in accordance with the Jencks Act, 18 U.S.C. § 3500.

 Insofar as the defendants are requesting the preservation of agent notes from interviews of government witnesses, the government has no objection to the motions. (See Gov. Mem. at 69, 77.) Accordingly, to this extent, the motions for preservation are granted. However, the government objects to the motions to the extent they demand the preservation of notes other than those of agents memorializing interviews of government witnesses. The government's objection is well taken. Defendants cite no authority for the proposition that the government may be required to preserve notes and memoranda of any kind, including, for example, agent notes regarding matters other than witness interviews or notes written by informants. The authorities which defendants do cite (see Shields Motion at 2, para. 1; DeLeo Motion at 2, para. 1) speak only to the propriety of preserving notes from witness interviews. See, e.g., United States v. Ammar, 714 F.2d 238, 258-59 (3d Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983). Moreover, Fed. R. Crim. P. 16 would appear to exempt from production internal notes and memoranda other than those concerning witness statements. See Rule 16(a)(2). Finally, the evident thrust of defendants' motions is for the preservation of notes regarding witness interviews alone. (See Shields Motion at 2-3, paras. 3, 4; DeLeo Motion at 2-3, paras. 2, 3.) Accordingly, the Court will order the preservation only of agent notes from witness interviews.

 These notes shall be produced by the government at such time as it produces other materials within the scope of § 3500. However, as set forth in a separate order concerning Shields' request for early production of § 3500 material, the Court is without the authority to compel early production of these materials.

 B. Attorney Notes

 Defendants also request the preservation and production of any attorney notes from witness interviews. The government objects to this request, contending that attorney notes are protected by the work product privilege and are exempt from production under Rule 16(a)(2).

 Defendants offer no authority which would support their request that the government preserve and produce attorney notes. At the same time, Rule 16(a)(2) expressly provides that "this rule does not authorize the discovery or inspection of reports, memoranda, or other internal governmental documents made by the attorney for the government . . . ." Accordingly, defendants' request for the preservation and production of attorney notes is denied.

 C. Transcripts of Electronically Monitored Conversations

 In the course of its investigation, the government monitored and recorded a number of conversations between its cooperating witness and other individuals, including the defendants. Tapes of these conversations have been produced to the defendants, as have transcripts for most of tape-recorded the conversations. Shields now requests that any and all draft transcripts which the government prepared be preserved and produced. Shields contends that due to the difficulty of hearing the tapes themselves, the accuracy of the transcripts will be a key issue at trial and consequently the draft transcripts may be relevant to any disputes which arise as to the accuracy of the final transcripts which the government presents at trial. The government ...


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