Carson - Motion To Compel Discovery

Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 1 of 59
1 Thomas H. Bienert, Jr. (SBN 135311) tbienert@bmwklaw.com

BIENERT, MILLER, WEITZEL & KATZMAN, PLC
2 115 Avenida Miramar
San Clemente, California 92672
3 Phone: 949 369-3700, Fax: 949 369-3701
Attorneys for Defendant, PAUL COSGROVE
4
Nicola T. Hanna (SBN 130694) nhanna@gibsondunn.com
5 GIBSON DUNN & CRUTCHER LLP
3161 Michelson Drive, Suite 1200
6 Irvine, California 92612
Phone: 949 451-3800, Fax: 949 451-4220
7 Attorneys for Defendant, STUART CARSON
8 Kimberly A. Dunne (SBN 142721) kdunne@sidley.com

SIDLEY AUSTIN LLP
9 555 W. Fifth Street, Suite 4000
Los Angeles, California 90013-1010
10 Phone: 213 896-6000, Fax: 213 896-6600
Attorneys for Defendant, HONG CARSON
11
David W. Wiechert (SBN 94607) dwiechert@aol.com
12 LAW OFFICES OF DAVID W. WIECHERT
107 Avenida Miramar, Suite A
13 San Clemente, California 92672
Phone: 949 361-2822, Fax: 949 496-6753
14 Attorneys for Defendant, DAVID EDMONDS
15
UNITED STATES DISTRICT COURT
16
CENTRAL DISTRICT OF CALIFORNIA
17
SOUTHERN DIVISION
18
19
UNITED STATES OF AMERICA CASE NO. SA CR-09-0077-JVS
20
Plaintiff, DEFENDANTS’ JOINT NOTICE OF
21 MOTION AND MOTION TO
v. COMPEL DISCOVERY;
22 [PROPOSED] ORDER
STUART CARSON, HONG CARSON,
23 a/k/a “Rose Carson,” PAUL
COSGROVE, DAVID EDMONDS, Date: September 28, 2009
24 FLAVIO RICOTTI, and HAN YONG Time: 9:00 a.m.
KIM, Ctrm: 10C [Hon. James V. Selna]
25
Defendants.
26
27
28
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ……………………………………………… iv
3 MEMORANDUM OF POINTS AND AUTHORITIES …………………. 1
4 I. INTRODUCTION …………………………………………………. 1
5 II. IMI/CCI’S COOPERATION WITH THE GOVERNMENT
6
AND WITHHOLDING OF DISCOVERY ……………………….. 2
7 III. THE DOCUMENTS AND INFORMATION DEFENDANTS

SEEK ARE DISCOVERABLE UNDER RULE 16, BRADY
8 AND ITS PROGENY …………………………………………….. 6
9
A. The Government is Obligated to Produce the Requested
10 Documents Under Rule 16(a)(1)(E) Because They
11 Are In Its Possession, Custody or Control and Are
Material to the Defense ……………………………………... 6
12
1. The Documents Defendants Seek Are in the
13
Government’s Possession, Custody or Control ………. 6
14
2. The Documents Defendants Seek are Material
15 to the Defense ………………………………………... 9
16
a. CCI’s Electronic Database …………………….. 10
17
b. The 5.5 Million Pages of “Relevant
18 Evidence” Housed in CCI’s Electronic
Database ………………………………………. 15
19
20 c. The Documents Identified in CCI’s

Privilege Log That CCI Disclosed to
21 the Government ………………………………. 15
22
i. The Attorney-Client Privilege
23 Does Not Apply to the
Documents in the Privilege Log
24
Because They Were Prepared for
25 the Government ………………………… 17
26 ii. Any Attorney-Client Privilege
27 Has Been Waived ……………………… 19
28
-i-
1 iii. Work Product Protection Has

2
Been Waived …………………………… 19
3 d. Documents Missing from the Discovery

Produced by the Government …………………. 21
4
5 e. IMI/CCI’s 2007 Investigation Materials ………. 23
6 f. Documents Relating to IMI/CCI’s 2004

Audit …………………………………………… 25
7
8 g. Documents Relating to Any Investigations,

Audits or Inquiries Conducted by IMI/CCI
9 into Allegations of Wrongdoing by
10 Defendants .......................................................... 27
11 h. IMI/CCI’s FCPA and Travel Act Training

Materials ………………………………………. 27
12
13 i. The Set of Binders in Ms. Carson’s Office,

and the Binder Mr. Cosgrove Gave
14 to Steptoe ……………………………………… 28
15
j. Defendant’s Personnel Files …………………… 28
16
k. Documents Reflecting Communications
17 Between IMI and/or CCI and the
18 Government …………………………………… 29
19 l. Documents Reflecting Communications

Between IMI/CCI and Customers or
20
Third-Party Witnesses Regarding the
21 Allegations in the Indictment ………………….. 31
22 m. Documents Relating to the Internal
23 Investigation Conducted by China
National Offshore Oil Corporation and
24 Any Other CCI Customers into
25 Allegations of Bribery by CCI ………………… 32
26 n. The Government is Obligated Under
Rule 16(a)(1)(A) and (B) to Produce
27
the Notes and Written Reports of
28 Defendants’ Statements ………………………. 34
-ii-
2 B. The Court Should Compel the Government to Produce

3 Exculpatory Evidence, Including the 2007 Investigation
Materials, Correspondence Between IMI/CCI and the
4 Government, and 2004 Audit Documents to the
5 Extent They Contain Brady Material ……………………….. 36
6 C. The Court Should Compel the Government to Produce
7 Impeachment Evidence, Including the 2007
Investigation Materials, 2004 Audit Documents, and
8 Cooperating Witnesses’ Computers and Personnel
9 Files to the Extent They Contain Giglio Material …………… 40
10 D. Defendants are Entitled to Statements of Non-Testifying

Alleged Co-conspirators …………………………………….. 42
11
12 E. The Court Should Direct the Government to Preserve

Agents/Investigators’ Notes and Continue to
13 Produce Discovery on an Ongoing Basis …………………… 42
14
F. The Court Should Direct the Government to Comply
15 with the Court’s Order Regarding the Bill of Particulars ……. 43
16 IV. CONCLUSION …………………………………………………….. 44
17
18
19
20
21
22
23
24
25
26
27
28
-iii-
1 TABLE OF AUTHORITIES
2 CASES:
3
Beckwith v. United States
4 425 U.S. 341 (1976) ……………………………………………………….36
5 Brady v. Maryland
6 373 U.S. 83 (1963) ……………………………………………………passim
7 Garrity v. New Jersey

385 U.S. 493 (1967) ……………………………………………………….36
8
Giglio v. United States
9 405 U.S. 150 (1972) ……………………………………………………….40
10 Hamric v. Bailey
11 386 F.2d 390 (4th Cir. 1967) …………………………………………..40, 41
12 In re Columbia/HCA Healthcare
th
Corp. Billing Practices Litigation
293 F.3d 289 (6 Cir. 2002) ………………………………………………20
13
In re Grand Jury Invest.
14 974 F.2d 1068 (9th Cir. 1992) ……………………………………………..17
15 In re Leslie Fay Companies, Inc. Securities Litigation
16 226 F.R.D. 579 (N.D. Ohio 2005) ………………………………………...21
17 In re OM Group Securities Litigation

226 F.R.D. 579 (N.D. Ohio 2005) ………………………………………...21
18
In re Qwest Communications Int’l Inc.
19
450 F.3d 1179 (10th Cir. 2006) ……………………………………………19
20
In re Syncor Erisa Litigation
21 229 F.R.D. 636 (C.D. Cal. 2005) …………………………………………19
22 LaMere v. Risley
827 F.2d 622 (9th Cir. 1987) ………………………………………………40
23
Napue v. Illinois
24
360 U.S. 264 (1959) …………………………………………………..40-41
25
Pennsylvania v. Ritchie
26 480 U.S. 39 (1987) ……………………………………………………….43
27 United States v. Acosta
28 357 F. Supp. 2d 1228 (D. Nev. 2005) ……………………………………37
-iv-
1 TABLE OF AUTHORITIES CONTINUED:

2
CASES CONT’D:
3
4 United States v. Agurs

427 U.S. 97 (1976) …………………………………………………...37, 43
5
United States v. Bagley
6 473 U.S. 667 (1985) ……………………………………………………...40
7 United States v. Bailleaux
8 685 F.2d 1105 (9th Cir. 1982) …………………………………………....35
9 United States v. Bergonzi

216 F.R.D. 487 (N.D. Cal. 2003) …………………………………...passim
10
United States v. Black
11 767 F.2d 1334 (9th Cir. 1985) …………………………………………....31
12 United States v. Cadet
13 727 F.2d 1453 (9th Cir. 1984) ……………………………………40, 41, 42
14 United States v. Harris th

543 F.2d 1247 (9 Cir. 1976) ……………………………………………42
15
United States v. Hibler
16 463 F.2d 455 (9th Cir. 1972) …………………………………………….37
17 United States v. Int’l Union of Petroleum & Indus. Workers, AFL-CIO
18 870 F.2d 1450 (9th Cir. 1989 ……………………………………………..6
19 United States v. Johnson

525 F.2d 999 (2d Cir. 1975) …………………………………………….35
20
United States v. Kilroy
21 523 F. Supp. 206 (E.D. Wis. 1981) …………………………………….. 9
22 United States v. Layton
23 564 F. Supp. 1391 (D. Or. 1983) ………………………………………35
24 United States v. Liquid Sugars, Inc.

158 F.R.D. 466 (E.D. Cal 1994) ……………………………………….10
25
United States v. Lloyd
26 992 F.2d 348 (D.C. Cir. 1993) …………………………………10, 13, 16
27 United States v. Mandel
28 914 F.2d 1215 (9th Cir. 1990) ……………………………………………9
-v-

2
CASES CONT’D:
3
4 United States v. Marshall

132 F.3d 63 (D.C. Cir. 1998) …………………………………………....27
5
United States v. Mass Inst. of Tech.
6 129 F.3d 681 (1st Cir. 1997) ……………………………………………..20
7 United States v. Miller
8 529 F.2d 1125 (9th Cir. 1976) ……………………………………….36, 37
9 United States v. Morrison

43 F.R.D. 516 (N.D. Ill. 1967) ……………………………………….…35
10
United States v. Nicholas
11 606 F. Supp. 2d 1109 (C.D. Cal. 2009) ……………………………..24, 36
12 United States v. Payden
13 613 F. Supp. 800 (S.D.N.Y. 1983) ………………………………….…..42
14 United States v. Poindexter

727 F. Supp. 1470 (D.D.C. 1989) ………………………………………35
15
United States v. Pollard
16 856 F.2d 619 (4th Cir. 1988) ……………………………………………30
17 United States v. Price
18 566 F.3d 900 (9th Cir. 2009) …………………………………………....37
19 United States v. Stein

488 F. Supp. 2d 350 (S.D. N.Y. 2007) ……………………….6, 7, 8, 9, 30
20
United States v. Sudikoff
21 36 F. Supp. 2d 1196 (C.D. Cal. 1999) ……………………………...17, 37
22 United States v. Thompson
23 562 F.3d 387 (D.C.Cir. 2009) ………………………………………….20
24 United States v. Turkish

458 F. Supp. 874 (S.D.N.Y. 1978) …………………………………….42
25
United States v. Zuno-Arce
26
44 F.3d 1420 (9th Cir. 1995) ……………………………………………40
27
28
-vi-

2
STATUTES:
3
4 The Foreign Corruption Practices Act of 1977 ……………………...1, 25, 27, 28
5 The Travel Act of 1952 ……………………………………………...1, 25, 27, 28
6 The Jencks Act …………………………………………………………..…….42
7 18 U.S.C. § 1519………………………………………………………………...1
9 RULES:
10
Fed. R. Crim. P. 16 ……………………………………………………….passim
11
Fed. R. Evid. 801(d)(2)(E) …..………………………………………………..42
12
13
14 TREATISES:
15 7 Moore’s Federal Practice § 34.14[2][b] (3d ed. 2006) ………………………6
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 Thomas H. Bienert, Jr. (SBN 135311) tbienert@bmwklaw.com

BIENERT, MILLER, WEITZEL & KATZMAN, PLC
2 115 Avenida Miramar
San Clemente, California 92672
3 Phone: 949 369-3700, Fax: 949 369-3701
Attorneys for Defendant, PAUL COSGROVE
4
Nicola T. Hanna (SBN 130694) nhanna@gibsondunn.com
5 GIBSON DUNN & CRUTCHER LLP
3161 Michelson Drive, Suite 1200
6 Irvine, California 92612
Phone: 949 451-3800, Fax: 949 451-4220
7 Attorneys for Defendant, STUART CARSON
8 Kimberly A. Dunne (SBN 142721) kdunne@sidley.com

SIDLEY AUSTIN LLP
9 555 W. Fifth Street, Suite 4000
Los Angeles, California 90013-1010
10 Phone: 213 896-6000, Fax: 213 896-6600
Attorneys for Defendant, HONG CARSON
11
David W. Wiechert (SBN 94607) dwiechert@aol.com
107 Avenida Miramar, Suite A
13 San Clemente, California 92672
Phone: 949 361-2822, Fax: 949 496-6753
14 Attorneys for Defendant, DAVID EDMONDS
15
UNITED STATES DISTRICT COURT
16
CENTRAL DISTRICT OF CALIFORNIA
17
SOUTHERN DIVISION
18
19
UNITED STATES OF AMERICA CASE NO. SA CR-09-0077-JVS
20
Plaintiff, DEFENDANTS’ JOINT NOTICE OF
21 MOTION AND MOTION TO
v. COMPEL DISCOVERY;
22 [PROPOSED] ORDER
STUART CARSON, HONG CARSON,
23 a/k/a “Rose Carson,” PAUL
COSGROVE, DAVID EDMONDS, Date: September 28, 2009
24 FLAVIO RICOTTI, and HAN YONG Time: 9:00 a.m.
KIM, Ctrm: 10C [Hon. James V. Selna]
25
Defendants.
26
27
28
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1 TO THE HONORABLE COURT, ALL PARTIES AND THEIR

2 ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on September 28, 2009, at 9:00 a.m., in the
4 courtroom of the Honorable James V. Selna, or as soon thereafter as this matter
5 may be heard, defendants Stuart Carson, Paul Cosgrove, Hong Carson, and David
6 Edmonds will, and hereby do, move this Court to compel the government to
7 produce the following discovery:
8  Control Components Inc.’s (“CCI”) Electronic Database collected

9 during its internal investigation;
10  The documents identified in CCI’s privilege log that CCI disclosed to
11 the government;
12  Documents missing from the 37,000 pages of discovery produced to
13 date by the government;
14  Documents relating to the 2007-08 investigation into commission
15 payments conducted on behalf of CCI and/or its parent company, IMI
16 plc (“IMI”);
17  Documents relating to the 2004 audit of commission payments
18 conducted on behalf of IMI and/or CCI (“IMI/CCI”), including
19 documents reviewed by the auditors, documents reflecting results of the
20 audit, and any related communications of CCI’s Board of Directors,
21 management, and/or employees;
22  Documents relating to any investigations, audits, or inquiries conducted
23 by IMI/CCI into allegations of wrongdoing by Defendants;
24  IMI/CCI’s FCPA and Travel Act training materials, including training
25 offered in China in or around 2006;
26  The set of binders in the possession of defendant Hong Carson as of
27 August 17, 2007, containing materials related to CCI commission
28 payments for projects in China, and the binder defendant Cosgrove
-2-
1 gave to the law firm of Steptoe & Johnson (“Steptoe”) in August 2007
2 containing information relating to CCI’s commission payments and
3 CCI’s organizational structure;
4  Defendants’ personnel files from IMI/CCI;
5  Documents reflecting communications and/or agreements between
6 IMI/CCI and the government, including the U.S. Department of Justice,
7 the U.S. Attorney’s Office for the Central District of California, and the
8 Federal Bureau of Investigation;
9  Documents reflecting communications between IMI/CCI and
10 customers or third-party witnesses regarding the allegations in the
11 Indictment;
12  Documents relating to the internal investigation undertaken by CCI
13 customers, including, but not limited to, China National Offshore Oil
14 Corporation (“CNOOC”), Dongfang Electric (“Dongfang”), Guohua
15 Electric Power (“Guohua”) and the Chinese State-owned Assets
16 Supervision and Administration Commission (“SASAC”), into
17 allegations of bribery by CCI and/or its employees, including
18 communications between CCI and/or the government and CNOOC,
19 Dongfang, Guohua, SASAC and/or the Chinese government, and
20 communications between CCI and the government relating to the
21 alleged bribery of CNOOC, Dongfang, Guohua and/or other officials;
22  Notes and any written reports, memoranda or e-mail summaries of
23 Defendants’ statements made to Steptoe and/or Ernst & Young in
24 August 2007;
25  Discovery required by Brady v. Maryland, 373 U.S. 83 (1963) and
26 Giglio v. United States, 405 U.S. 150 (1972);
27  Statements of non-testifying alleged co-conspirators; and
28  Supplemental Bill of Particulars.
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1 This motion is based on the instant Notice, the attached Memorandum of

2 Points and Authorities, and the exhibits attached to the Declaration of Kenneth
3 Miller, and is brought pursuant to Rule 16 of the Federal Rules of Criminal
4 Procedure, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405
5 U.S. 150 (1972), all other applicable constitutional, statutory, and case authority,
6 and such evidence and argument as may be presented at the hearing of this motion.
7 DATED: September 4, 2009 Respectfully submitted,

8 BIENERT, MILLER, WEITZEL & KATZMAN
9
PLC
10 By: S/Thomas H. Bienert, Jr._________________

11
Thomas H. Bienert, Jr.
Attorneys for Defendant PAUL COSGROVE
12
13
GIBSON, DUNN & CRUTCHER LLP
14
15
By: S/Nicola T. Hanna_____________________
16 Nicola T. Hanna
17 Attorneys for Defendant STUART CARSON
18
19 SIDLEY AUSTIN LLP
20
By: S/Kimberly A. Dunne_________________
21 Kimberly A. Dunne
22 Attorneys for Defendant HONG CARSON
23
25
By: S/David W. Wiechert_________________
26 David W. Wiechert
27 Attorneys for Defendant DAVID EDMONDS
28
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3 In a 16-count indictment returned on April 8, 2009 (the “Indictment”), the
4 government charges six former executives, including Stuart Carson, Hong “Rose”
5 Carson, Paul Cosgrove and David Edmonds (collectively “Defendants”) of Rancho
6 Santa Margarita-based Control Components Inc. (“CCI” or the “Company”) with
7 orchestrating a wide-ranging conspiracy to violate the Foreign Corrupt Practices
8 Act (the “FCPA”) and the Travel Act. The Indictment also charges various
9 combinations of defendants with nine counts of substantive violations of the FCPA
10 and five counts of substantive violations of the Travel Act. Additionally, the
11 Indictment charges one defendant with obstruction of justice under 18 U.S.C.
12 § 1519.
13 As this Court is aware, the allegations in the Indictment are sweeping – both
14 in terms of the timeframe (and frequency) of the alleged wrongdoing, as well as in
15 the geographic diversity of the locations in which the wrongdoing allegedly
16 occurred. According to the Indictment, over a nine-year period (between 1998 and
17 2007), Defendants allegedly “made and caused [CCI] employees and agents to
18 make corrupt payments to officers and employees of numerous state-owned and
19 privately-owned customers around the world for the purpose of assisting in
20 obtaining or retaining business for [CCI].” Indictment, ¶ 14. And the government
21 alleges that between 2003 and 2007, the Defendants bribed customers “in over
22 thirty countries” with “approximately 236 payments” totaling “approximately
23 $6.85 million” to secure a series of projects that “resulted in net profits to [their
24 employer, CCI] of approximately $46.5 million.” Id. The government has also
25 alleged that, in addition to these payments, Defendants bribed customers with
26 “overseas holidays,” “extravagant vacations,” “lavish sales events,” and
27 “expensive gifts.” Id., ¶¶ 19, 20, 22 & 23.
28 CCI, identified as Company A in the Indictment, designs and manufactures
-1-
1 control valves for use in the nuclear, oil and gas, and power generation industries.1
2 CCI is a subsidiary of a British firm, IMI, plc (“IMI”). Exh. A. CCI is a large and
3 diverse enterprise, with thousands of customers across the globe. CCI presently
4 employs individuals in over 15 countries and utilizes commissioned local sales
5 representative organizations in over 60 countries. Id.
6 Defendants are former CCI executives, each of whom worked at CCI for a
7 substantial period of time. Stuart Carson was the Chief Executive Officer of CCI
8 from 1989 to 2005. Indictment, ¶ 4. Rose Carson served as CCI's Manager of
9 Sales for China and Taiwan from 2000 to 2002 and then served as Director of
10 Sales for China and Taiwan from 2002 to 2007. Paul Cosgrove was CCI's
11 Executive Vice President from 2002 to 2007 and served as the head of CCI's
12 Worldwide Sales Department from 1992 to 2007. Id., ¶ 6. Dave Edmonds was
13 CCI's Vice-President of Worldwide Customer Service from 2000 to 2007. Id., ¶ 7.
14 II. IMI/CCI’s COOPERATION WITH THE GOVERNMENT AND

WITHHOLDING OF DISCOVERY
15
In 2007, IMI and CCI initiated an internal investigation into alleged unlawful
16
payments and expenses in connection with CCI's procurement of contracts. IMI
17
retained the law firm of Steptoe & Johnson (“Steptoe”) to conduct the internal
18
investigation and Steptoe, in turn, retained the accounting firm of Ernst & Young
19
(“EY”) to assist with the investigation. As part of the internal investigation, Steptoe,
20
EY and CCI personnel interviewed defendants Rose Carson, Cosgrove and
21
Edmonds (“Interviewed Defendants”) in August 2007 and took notes of the
22
interviews.
23
Further, EY collected from IMI and CCI over 5.5 million pages of relevant
24
documents and electronic records worldwide, including e-mail, accounting records,
25
26
1
See CCI Website Profile attached as Exhibit A to the Declaration of
27
Kenneth Miller (“Miller Declaration”).
28
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1 agency agreements, and forensic images of over 200 computer hard drives, which
2 were compiled into a comprehensive, searchable electronic database (“CCI
3 Electronic Database”), and Steptoe conducted over 125 employee interviews in
4 approximately 15 countries, including the United States, the United Kingdom,
5 Switzerland, Italy, France, Austria, Sweden, Japan, Korea, China, Malaysia,
6 Singapore, India, Indonesia, and the United Arab Emirates. 2
7 Steptoe produced to the government “real time” updates of its witness

8 interviews, presumably including oral descriptions of the Interviewed Defendants’
9 statements made to Steptoe in August 2007. Exh. B, p. 5, lns. 19-26. At the
10 government’s request, IMI and CCI also prepared extensive factual analyses and
11 summaries identifying the 236 alleged improper payments as well as alleged
12 improper expenses, which the government relied upon to tailor its investigation and
13 secure the Indictment against Defendants. Id. at p. 6, lns. 1-18.
14 Incredibly, of the more than 5.5 million pages of relevant documents obtained
15 by IMI and CCI, Steptoe selected less than 1% – roughly 42,000 pages – to disclose
16 to the government, seemingly focusing on those documents that appear to cast
17 blame on Defendants while protecting IMI and CCI’s own interests. The
18 government apparently relied primarily on the 42,000 pages hand-picked by IMI and
19 CCI in tailoring its investigation and securing the Indictment against Defendants.
20 CCI’s Plea Agreement confirms that the government has control over the
21 entire scope of the 5.5 million pages of relevant documents in this case, thereby
22 giving it access to what is essentially an entire warehouse of documents material to
23 the defense. But despite Defendants’ detailed requests for this discovery, and the
24 government’s control over and access to the documents Defendants seek, the
25
26 2
See Memorandum on Behalf of Control Components, Inc. in Support of Rule
27 11(c)(1)(C) Plea and Agreed-Upon Sentence (“CCI Sentencing Memo”), p. 3, lns.
11-19; 23-26, attached as Exhibit B to the Miller Declaration.
28
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1 government has produced only 37,000 pages of discovery to Defendants of the
2 42,000 received from CCI and disclosed only oral descriptions of the purported
3 statements the Interviewed Defendants made to Steptoe and EY. The government
4 also refuses to produce IMI/CCI’s analyses and summaries – documents prepared at
5 the government’s request and disclosed to the government – under the guise of the
6 attorney-client and attorney work product privileges asserted by CCI, and maintains
7 that it has otherwise complied with its discovery obligations to Defendants in this
8 case. The government is mistaken.
9 The 5.5 million pages of relevant documents contained in CCI’s Electronic

10 Database demonstrate that the amount of evidence material to Defendants’ case far
11 exceeds the approximately 37,000 pages of discovery the government has produced
12 in this case. The government essentially outsourced its investigation to Steptoe and
13 is now trying to avoid producing documents it indisputably would have to produce if
14 it had the documents in its physical possession. The government should not be
15 permitted to use the fact that Steptoe conducted the investigation as a shield from
16 producing the documents Defendants seek, while it has the ability to use this
17 evidence as a sword against Defendants at a later time.
18 Given the cooperative relationship between CCI and the government, which is
19 both documented and mandated by contract in the CCI Plea Agreement, it is clear
20 that the government has control over the entire scope of material documents in this
21 case, and has the ability to access them with a simple request to CCI. To limit the
22 government’s Rule 16 obligations to production of the small subset of documents
23 currently in the government’s hands would effectively permit a cooperating
24 defendant such as CCI to steer the government’s investigation and craft the evidence
25 in a manner that furthers its own interests at the expense of others who are not privy
26 to the information from which the cooperating defendant cherry-picked.
27 Moreover, the government has failed to produce Brady material that is

28 indisputably in its possession, despite its assurances and the Court’s standing Order.
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1 Despite Defendants’ repeated requests for Brady material in April and June 2009,
2 the government sat on patently exculpatory information, including a letter from
3 Steptoe dated June 22, 2009, wherein CCI acknowledged “the possibility that some
4 or all of the funds in question were . . . not passed through to employees of
5 customers or end users.” The government chose to produce Steptoe’s letter only
6 after Defendants learned through media reports that CCI had informed a Chinese
7 customer that it had no evidence of bribes being paid to its employees (despite a
8 DOJ press release and CCI’s representations to the Court in its Statement of Facts to
9 its Plea Agreement that said otherwise), and after Defendants specifically asked the
10 government for all information and documents related to the media report (and over
11 one month after the government assured Defendants that it had complied with its
12 Brady obligations). The government’s nonchalance about complying with its
13 discovery obligations contravenes the Court’s Order requiring forthwith production
14 of Brady material and stands to prejudice Defendants’ ability to prepare their
15 defense.
16 Considering the complexity of the case, including the vast number of

17 witnesses located in various parts of the world and the number of transactions at
18 issue in the Indictment, it is imperative that all discovery to which Defendants are
19 entitled be produced well in advance of trial, including forthwith production of
20 Brady material, in order to facilitate Defendants’ effective preparation for trial and
21 avoid any delays. Because the documents Defendants seek are material to the
22 defense and are within the government’s control, and because any applicable
23 privileges have been waived as a result of IMI/CCI’s disclosure to the government,
24 the government simply has no basis for failing to produce the requested discovery to
25 Defendants or withholding patently exculpatory information. Accordingly,
26 defendants Stuart Carson, Rose Carson, Paul Cosgrove and David Edmonds move
27 the Court for an order compelling production of the items described herein.
28
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1 III. THE DOCUMENTS AND INFORMATION DEFENDANTS SEEK ARE

DISCOVERABLE UNDER RULE 16, BRADY AND ITS PROGENY
2
A. The Government is Obligated to Produce the Requested Documents
3 Under Rule 16(a)(1)(E) Because They are in Its Possession, Custody or
Control and Are Material to the Defense
4
1. The Documents Defendants Seek are in the Government’s
5 Possession, Custody or Control
6 Federal Rule of Criminal Procedure 16(a)(1)(E) (“Rule 16”) provides that the
7 government “must permit the defendant to inspect and to copy” all documents and
8 other physical objects in the government’s “possession, custody or control” that are
9 (i)“material to preparing the defense,” (ii) intended for use by the government as
10 evidence in its case-in-chief at trial, or (iii) obtained from or belonging to the
11 defendant. Fed. R. Crim. P. 16(a)(1)(E)(i)-(iii). CCI’s Plea Agreement gives the
12 government the unqualified right to demand from CCI the production of any non-
13 privileged documents within CCI’s control. As a result, the government is in
14 “possession, custody or control” of documents that are stored at IMI/CCI and its
15 agents and is obligated to produce them to the extent they are material to the
16 defense. “Legal ownership of the requested documents or things is not
17 determinative, nor is actual possession necessary if the party has control of the
18 items. Control has been defined to include ‘the legal right to obtain the documents
19 requested upon demand.’ The term ‘control’ is broadly construed.” United States
20 v. Stein, 488 F. Supp. 2d 350, 361 (S.D.N.Y. 2007) (quoting MOORE’S FEDERAL
21 PRACTICE § 34.14[2][b], at 34-64 (3d ed. 2006) (footnotes omitted)); accord
22 United States v. Int’l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d
23 1450, 1452 (9th Cir. 1989).
24 As reflected in CCI’s Plea Agreement:

25 CCI agrees to continue to cooperate fully with the Department and the
26 Federal Bureau of Investigation, in a manner consistent with the non-
27 waiver agreement between the parties, dated October 18, 2007, and
28 consistent with applicable law and regulations including labor, data
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1 protection, and privacy laws. . . . CCI shall truthfully disclose to the

2 Department all non-privileged information with respect to the
3 activities of CCI and its affiliates, its present and former directors,
4 officers, employees, agents, consultants, contractors and
5 subcontractors, concerning all matters relating to corrupt payments to
6 foreign public officials or to employees of private customers in
7 connection with their operations about which CCI has any knowledge
8 and about which the Department, the Federal Bureau of Investigation,
9 or, at the request of the Department, any foreign law enforcement
10 authorities and agencies, shall inquire. This obligation of truthful
11 disclosure includes the obligation of CCI to provide to the
12 Department, upon request, any non-privileged document, records, or
13 other tangible evidence relating to such corrupt payments to foreign
14 public officials or to employees of private customers about which the
15 aforementioned authorities and agencies shall inquire of CCI, subject
16 to the direction of the Department.3
17 In Stein, defendants, former KPMG partners, sought from the government
18 production of correspondence between KPMG and the government, including draft
19 plea agreements and other communications, on the grounds that the government had
20 control over the requested documents based on the government’s legal right under
21 KPMG’s Deferred Prosecution Agreement to obtain any documents relating to the
22 case from KPMG. 488 F. Supp. 2d at 357. KPMG resisted production, arguing that
23 the government did not have Rule 16 control over the documents that were not in its
24 physical possession – “whether or not the government may assert a claim to the
25 documents pursuant to the Deferred Prosecution Agreement.” Id. at 360, 363. It
26
27 3
See CCI Plea Agreement, ¶ 6 attached as Exhibit C to the Miller Declaration.
28
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1 also argued the Deferred Prosecution Agreement simply vested discretion in the
2 government to request documents from KPMG, leaving the court unable to compel
3 the government to make such a request. Id. at 363.
4 Rejecting KPMG’s first argument, the court held that Rule 16 speaks of
5 “possession, custody or control,” not simply “possession.” Id. “KPMG’s arguments
6 would read the words ‘custody or control’ out of the rule in flat contravention of the
7 principle that all words in a statute, rule or contract are to be given meaning
8 whenever possible. It therefore is not surprising that every circuit to have
9 considered the question has held that ‘control’ under the federal rules of procedure
10 includes the legal right to obtain the documents in question.” Id. In rejecting
11 KPMG’s second argument, the court noted that Rule 16 requires that the
12 government produce all documents material to preparing the defense that are within
13 its possession, custody or control. Since the Deferred Prosecution Agreement gave
14 the government the legal right to obtain these documents subject to the limited
15 carve-out for privileged documents, the government had control over the documents
16 sought by defendants. Id. “Once control is established, the obligation exists.” Id.
17 The government also resisted production by arguing that the language

18 obligating entities with which the government enters into non-prosecution or
19 deferred prosecution agreements to produce documents upon the government’s
20 request “is standard” and that the implications of holding that such language places
21 the documents in the government’s control would be “untenable.” Id. at 362.
22 Rejecting this argument, the court noted that “[t]he plain language of Rule 16 makes
23 clear that documents material to the defense that are within the government’s control
24 are producible. That the government has begun making broad use of pre-indictment
25 cooperation agreements in recent years or that it might regard compliance with its
26 discovery obligations in such cases to be inconvenient warrants no different
27 conclusion. If the government is uncomfortable with the consequences of such
28 cooperation agreements, it need not insist upon them in future cases.” Id. at 364.
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1 The court concluded that the requested documents were in the possession,
2 custody or control of the government subject only to the carve-out for privileged
3 documents. Id. The court further held that because KPMG failed to establish that
4 any privilege applied to the documents, “all responsive documents are within the
5 government’s control” and directed the government to produce the requested
6 documents that were in KPMG’s physical possession pursuant to Rule 16. Id.
7 Like Stein, CCI’s Plea Agreement reflects that the government has the legal
8 right to demand production by CCI of any of its non-privileged documents in
9 connection with the government’s case. The government’s 302 statement for IMI’s
10 in-house counsel, John O’Shea, underscores this point as O’Shea agreed to provide
11 material documents to Steptoe, rather than to the FBI.4 The documents Defendants
12 seek are plainly within the government’s control and the government is obligated to
13 produce them. See United States v. Kilroy, 523 F. Supp. 206 (E.D. Wis. 1981)
14 (holding that since the defendant’s former employer, Standard Oil, was cooperating
15 with the government and making available any records which Standard Oil had, the
16 records were within the government’s control under Rule 16). Accordingly,
17 Defendants respectfully request that the Court direct the government to produce the
18 documents Defendants seek within 30 days.
19 2. The Documents Defendants Seek are Material to the Defense

20 To obtain discovery through Rule 16, the defendant must make a prima facie
21 showing of materiality. United States v. Bergonzi, 216 F.R.D. 487, 501 (N.D. Cal.
22 2003) (citing United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). The
23 materiality requirement is not a heavy burden; rather, evidence is material as long as
24
25 4
See document bates numbered CCI_357, FBI 302 statement of John Joseph
26 Patrick O’Shea dated May 22, 2008, attached as Exhibit D to the Miller
Declaration (“O’Shea still maintained the training notes he used for the training
27
and will provide those notes to Steptoe and Johnson.”).
28
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1 there is a strong indication that the evidence will play an important role in
2 uncovering admissible evidence, aiding witness preparation, corroborating
3 testimony, or assisting impeachment or rebuttal. Bergonzi, 216 F.R.D. at 501 (citing
4 United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 471 (E.D. Cal. 1994)); United
5 States v. Lloyd, 992 F.2d 348, 350-51 (D.C. Cir. 1993). A defendant meets the
6 materiality standard by presenting facts tending to show that the government is in
7 possession of information helpful to the defense. Bergonzi, 216 F.R.D. at 501.
8 a. CCI’s Electronic Database

9 The Indictment alleges that Defendants made and caused CCI employees and
10 agents to make 236 improper payments in over thirty countries between 2003 and
11 2007. Indictment, ¶ 14. CCI’s Electronic Database, comprised of over 5.5 million
12 pages of “relevant evidence” that EY gathered from IMI/CCI in connection with the
13 investigation of alleged improper payments and expenses, including “email,
14 accounting records, agency agreements and forensic images of over 200 computer
15 hard drives” (Exh. B, p. 3, lns. 15-19), undoubtedly includes the specific documents
16 that Defendants have repeatedly requested from the government relating to each of
17 the 236 alleged improper payments referenced in the Indictment and identified in the
18 Bill of Particulars.
19 To date, however, the government has produced only 37,000 pages of

20 discovery, including a very small portion of Defendants’ e-mails spanning the
21 2000 to 2006 time period, expense reports and some of KPMG’s annual audit
22 documents for the same 2000 to 2006 time period, and agency agreements and
23 accounting records for only some of the 236 payments identified in the Bill of
24 Particulars. The discovery produced by the government fails to include key
25 documents relating to each of the alleged improper payments identified in the Bill
26 of Particulars, including the contracts for each project, accounting records
27 reflecting each of the alleged improper payments, e-mails and correspondence
28
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1 relating to the projects and alleged improper payments, and the project files CCI
2 kept for each project. 5
3 Notably, of the documents that have been produced, many reflect

4 irregularities and/or fail to include the documents in their entirety. For example,
5 document bates numbered CR0833-0834 consists of an April 28, 2004 e-mail from
6 CCI employee Sara Peng to defendant Paul Cosgrove, with a “cc” to defendant
7 Rose Carson, containing six paragraphs of information, including two paragraphs
8 identifying “Beneficiary” information. Document number 0000212 (which is bates
9 numbered 127 on the actual document) contains the same April 28, 2004 e-mail
10 from Sara Peng, but includes only three paragraphs of information, omitting three
11 paragraphs of information found in the e-mail bates numbered CR0833-0834,
12 including those identifying the “Beneficiary” information.6
13 Similarly, a document bates numbered CS2002 consists of an e-mail dated

14 April 21, 2004 from “Mahesh Shah” to “Steven Har,” with a response e-mail on
15 the same page dated August 25, 2007, almost three and one-half years after the
16 initial e-mail was sent, and in or around the time that IMI/CCI commenced its
17 investigation.7 The August 25, 2007 e-mail response contains no “From”
18 information in the header of the e-mail, leaving Defendants to guess at the actual
19 author of the e-mail without explanation for the three-year gap in response time.
20 The fact that some of the government’s discovery plainly includes altered
21
22 5
For example, payment number 47 in the Bill of Particulars lists an alleged
23 payment of $7,612 to Fu Xiangwei. However, Defendants are unable to find any
documents in the discovery showing or discussing a payment of $7,612 for that
24 project, let alone to Fu Xiangwei.
6
25 See documents bates numbered CR0833-0834 and document number
26
0000212 (bates numbered 127) attached as Exhibit E to the Miller Declaration.
7
See document bates numbered CS2002 attached as Exhibit F to the Miller
27
Declaration.
28
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1 documents underscores Defendants’ need for CCI’s Electronic Database.
2 The government’s discovery produced to date fails to include a vast amount

3 of relevant evidence in the government’s control that is material to the defense.
4 Because each of the key documents material to the alleged improper payments and
5 facts at issue in the Indictment appear to be contained in CCI’s Electronic
6 Database, Defendants are entitled to CCI’s Electronic Database under Rule 16.
7 Emails: E-mails relating to the 236 payments will likely specify the
8 individuals who negotiated and participated in the calculation and approval of the
9 payment of commissions under the project contracts. Further, e-mails to and from
10 Defendants, including those on which they were copied, are necessary to
11 demonstrate Defendants’ understanding of the transactions, including the cultivation
12 and use of friends-in-camp (“FICs”) as a legitimate sales model, rather than a
13 vehicle created for paying bribes, and knowledge concerning the identity of the third
14 parties receiving commissions.8 Demonstrating the sheer volume of e-mails
15 Defendants received and the number of projects they were working on at the time of
16 the allegedly improper payments will further shed light on Defendants’
17 understanding and state of mind with respect to the transactions at issue in this case.
18 Project Files: CCI kept files for each of its projects. The project files
19 relating to each of the 236 alleged improper payments, as well as documents relating
20 to the travel and entertainment referenced in the Indictment, are material to the
21 defense because they are vital in uncovering admissible evidence concerning the
22 facts at issue in the Indictment. The project files contain information concerning the
23 persons involved in the procurement of each of the contracts relating to the alleged
24 improper payments, as well as communications between CCI employees on the one
25
26 8
To the extent the Database does not contain all of Defendants’ e-mails
27 covering the time period alleged in the Indictment, Defendants seek these e-mails
for the reasons stated herein.
28
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1 hand, and customer employees and third party agents on the other, regarding
2 procurement of the contracts at issue.
3 Further, the project files will likely uncover information relating to the
4 amount of commissions to be paid under the contracts and the intended recipients of
5 the commissions, as well as the nature and extent of the third-party agents’
6 involvement in the procurement of the contracts at issue. Documents relating to the
7 alleged improper travel and entertainment will similarly uncover evidence
8 concerning the circumstances and persons involved in the alleged improper travel
9 and entertainment, including the nature and extent of Defendants’ involvement in
10 the same.
11 Agency Agreements/Accounting Records: The agency agreements

12 contained in CCI’s Electronic Database, pursuant to which the commission
13 payments were made, are necessary to establish the terms and conditions under
14 which representatives and consultants were paid under the contracts and to
15 demonstrate whether such payments were legitimate. Accounting records will
16 uncover evidence as to what payments were actually made, and will presumably
17 reveal the identity of the recipients and, importantly, whether the recipient of each
18 alleged improper payment was a foreign official or an employee of a private
19 company.
20 Defendants’ Computers: The forensic images of Defendants’ hard drives

21 and laptop computers (presumably contained in the Electronic Database) are
22 expected to contain at least some information concerning Defendants’ cultivation
23 and use of FICs and knowledge concerning the identity of third parties receiving
24 commissions. Thus, the Database is material to the defense as it contains
25 information central to each of the facts at issue concerning the alleged corrupt
26 payments, and will undoubtedly aid in identifying witnesses, corroborating
27 testimony, and aiding in preparation for trial. Lloyd, 992 F.2d at 351.
28 Significantly, the documents contained in CCI’s Electronic Database served
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1 as the basis for Steptoe’s determinations concerning Defendants’ purported
2 culpability in this case with respect to the 236 payments referenced in the
3 Indictment. Based on the Database, Steptoe allegedly determined that:
4 CCI’s former President, Stuart Carson . . . was the prime architect of

5 a sales model in which employees and agents cultivated relationships
6 with employees of state-owned and private customers that frequently
7 involved corrupt payments to the customer employees to help CCI
8 obtain or retain business. At the direction of Mr. Carson and other
9 senior managers, approximately 236 corrupt payments were made to
10 officers and employees of state-owned and private companies in
11 thirty-six countries from approximately 2003 through August 2007.
12 The corrupt payments totaled approximately $6.85 million, and the
13 related sales generated approximately $46.5 million in net profits.
14
15 In addition, the independent investigation found that CCI’s former

16 managers arranged for overseas holidays for employees of state-
17 owned and private customers under the guise of training and
18 inspection trips. Stuart Carson and his wife, Hong “Rose” Carson,
19 also arranged extravagant vacations for themselves and executives of
20 state-owned and private customers including first-class airfare and
21 five-star accommodations. These holidays and vacations were
22 intended to reward customer employees for causing their employer to
23 purchase CCI products and to obtain new business or retain current
24 business for CCI.
25 Exh. B, p. 4, lns. 1-18. The Indictment plainly reflects that this information, in turn,
26 served as the basis for the charges against Defendants as it recites almost verbatim
27 Steptoe’s determinations concerning Defendants’ alleged culpability. See
28 Indictment, ¶ 14 (“[A]pproximately $6.85 million in total improper payments were
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1 made in approximately 236 payments in over thirty countries and resulted in net
2 profits to [CCI] of approximately $46.5 million from the sales related to those
3 corrupt payments.”). The documents contained in CCI’s Electronic Database,
4 particularly those relating to the 236 payments Steptoe identified for the government
5 that are now referenced in the Indictment, will undoubtedly uncover admissible
6 evidence and aid in Defendants’ trial preparation. Accordingly, Defendants are
7 entitled to this discovery under Rule 16(a)(1)(E), and the government should be
8 compelled to produce it.9
9 b. The 5.5 Million Pages of “Relevant Evidence” Housed in

CCI’s Electronic Database
10
While Defendants are entitled to CCI’s Electronic Database under Rule
11
16(a)(1)(E), Defendants alternatively request the 5.5 million pages of documents
12
contained therein for the reasons stated in section III.A.2.a. above. Each of the more
13
than 5.5 million pages of documents is material to the defense as they relate directly
14
to each of the 236 payments referenced in the Indictment and identified in the Bill of
15
Particulars.
16
c. The Documents Identified in CCI’s Privilege Log That CCI
17 Disclosed to the Government
18 Defendants are entitled to the eight documents identified in CCI’s privilege
19 log that were disclosed to the government, and any underlying documents, because
20 they are material to the defense and any privileges attaching to these documents
21 have been waived. These documents include analyses and charts of potentially
22 improper payments, analyses and charts of allegedly improper meals, travel and
23 entertainment expenses, and an analysis of IMI’s and CCI’s profits from 2003-
24
25 9
To the extent CCI’s Electronic Database does not contain the documents
26 identified herein relating to each of the alleged improper payments, including those
from CCI’s foreign offices, Defendants respectfully request these documents as
27
well for the reasons stated herein.
28
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1 2007.10
2 These documents are patently material to the defense because they relate
3 precisely to the facts at issue in the Indictment concerning alleged improper
4 payments and expenses. Their materiality is underscored by CCI’s assertions in its
5 Sentencing Memorandum concerning the role these documents played in the
6 government’s prosecution of Defendants. According to CCI:
7 Perhaps most significantly, at the Department’s request IMI and CCI

8 prepared an extensive factual analysis and summary of the improper
9 payments at issue. The analysis was accompanied by supporting
10 email records, correspondence, agent invoices, wire transfer and bank
11 records, and other accounting documentation. . . . IMI and CCI
12 provided similar analyses to the Department relating to gifts, travel
13 and entertainment of state-owned customers. These analyses provided
14 a “roadmap” for the prosecution of individuals and also formed the
15 basis of [CCI’s] Plea Agreement. Without them, the Department
16 would have faced substantial difficulty identifying all of the improper
17 payments at issue.
18 Exh. B, p.6, lns. 7-17. Because these documents served as a roadmap for the
19 government’s prosecution of Defendants and were central in identifying the alleged
20 improper payments and expenses that now form the basis of the Indictment,
21 Defendants are entitled to these documents under Rule 16(a)(1)(E) because they
22 undoubtedly will play an important role in uncovering admissible evidence and
23 aiding Defendants’ preparation for trial. Lloyd, 992 F.2d at 351.
24 The government refuses to produce these documents to Defendants on the

25 grounds that CCI has reserved its right to assert certain privileges over the
26
27 10
See CCI Privilege Log attached as Exhibit G to the Miller Declaration.
28
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1 documents. The privilege log indicates that CCI asserts the attorney-client privilege
2 as to seven of the eight documents, and CCI asserts the attorney work product
3 doctrine as to all eight. Exh. G. But neither privilege applies here.
4 i. The Attorney-Client Privilege Does Not Apply to the

Documents in the Privilege Log Because They Were
5 Prepared for the Government
6 In order for the attorney-client privilege to apply, the communication sought
7 to be protected must, among other things, be made in confidence. Bergonzi, 216
8 F.R.D. at 493 (citing In re Grand Jury Invest., 974 F.2d 1068, 1071 (9th Cir. 1992)).
9 Communications between a client and attorney made for the purpose of relaying
10 communications to a third party are not confidential and not protected by the
11 attorney-client privilege. Bergonzi, 216 F.R.D. at 493 (citing United States v.
12 Sudikoff, 36 F. Supp. 2d 1196, 1204-05 (C.D. Cal. 1999)).
13 In Bergonzi, defendants, former McKesson Corporation executives, sought

14 production of McKesson’s internal investigation report and underlying materials,
15 including interview memoranda, prepared by the company’s outside counsel,
16 Skadden, Arps, Slate, Meagher & Flom (“Skadden”), in connection with
17 McKesson’s internal investigation into accounting irregularities. 216 F.R.D. at 490.
18 The defendants argued that the attorney-client privilege did not apply to the
19 documents sought and that they were entitled to them under Rule 16 and Brady
20 because, inter alia, the materials at issue were prepared for the government to obtain
21 leniency and not for the purpose of assisting in providing legal advice, and the
22 company waived any claim of privilege by voluntarily producing the materials to the
23 government. Id. at 492.
24 In analyzing the privilege issues, the district court noted that it was
25 undisputed that McKesson retained Skadden to gather relevant facts and to develop
26 an effective legal strategy for responding to potential securities fraud claims as a
27 result of the accounting regularities, and that prior to preparation of the documents,
28 Skadden, acting on behalf of the company, had agreed to turn them over to the SEC
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1 and United States Attorney’s Office pursuant to confidentiality agreements. Id. at
2 493. Although the confidentiality agreements stated that (i) the documents were
3 created “solely for the purposes of providing legal advice to the Company and the
4 Audit Committee,” (ii) communications were “protected by the work-product
5 doctrine and attorney-client privilege,” and (iii) the company “did not want to or
6 intend to waive the protection from further disclosure,” the confidentiality
7 agreements made “clear that prior to preparation of the Report and Back-up
8 Materials, the Company agreed to disclose the documents to the Government.” Id.
9 Further, the confidentiality agreements authorized the SEC to, in its

10 discretion, “determine that disclosure is otherwise required by federal law or in
11 furtherance of [either entities’] discharge of its duties and responsibilities,” and the
12 company “consented to the disclosure of the documents to a federal grand jury as
13 the [USAO] deems appropriate, and in any criminal prosecution that may result
14 from the [USAO’s] investigation.” Id. at 494. For these reasons, the district court
15 rejected the company’s argument that it intended the communications at issue to
16 remain confidential. Id. at 493-94. The court concluded that because Skadden made
17 the investigation report and back-up materials with the intent to relay them to the
18 government, the attorney-client privilege did not apply. Id. at 493-94. “It is
19 difficult for the Court to imagine how the communication between the company and
20 Skadden were confidential communications between attorney and client when
21 Skadden prepared the Report and Back-up Material after the company agreed to
22 disclose the same to the Government.” Id. at 494 n.7. As the court noted, “[s]uch a
23 disclosure conflicts with the underlying rationale behind the privilege, namely that
24 the privilege encourages frank discussions between an attorney and his client.” Id.
25 As in Bergonzi, the attorney-client privilege does not apply to the documents

26 listed in CCI’s privilege log if – as appears to be the case - they were created with
27 the intent to relay them to the government. Thus, to the extent that the “extensive
28 factual analysis and summary of the improper payments at issue” and “similar
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1 analyses . . . relating to gifts, travel and entertainment expenses and improper
2 ‘training trips’” identified in CCI’s Sentencing Memorandum are the seven of eight
3 “Analyses” and “Supplemental Version[s]” identified in CCI’s privilege log, the
4 attorney-client privilege does not apply because the documents were admittedly
5 made “for the purpose of relaying the communication to a third party,” indeed, the
6 documents were created at the government’s request.
7 ii. Any Attorney-Client Privilege Has Been Waived

8 Even if the attorney-client privilege applied to the documents listed in CCI’s
9 privilege log, CCI waived the privilege (both as to these documents and all
10 documents related to the same subject matter) as a result of its disclosure of the
11 documents to the government. See Bergonzi, 216 F.R.D. at 494 n.8, 497-98
12 (holding that even if the attorney-client privilege attached to documents at issue,
13 privilege was waived as a result of, inter alia, the corporation’s disclosure of the
14 documents to the government); In re Qwest Communications Int’l Inc., 450 F.3d
15 1179, 1185 (10th Cir. 2006) (“[T]he attorney-client privilege is lost if the client
16 discloses the substance of an otherwise privileged communication to a third party.”)
17 (citation omitted); In re Syncor Erisa Litig., 229 F.R.D. 636, 645 (C.D. Cal. 2005)
18 (“Generally, the voluntary disclosure of a privileged attorney-client communication
19 to a third party waives the privilege.”). Accordingly, Defendants are entitled to
20 these documents under Rule 16(a)(1)(E), and the government should be compelled
21 to produce them.
22 iii. Any Work Product Protection Has Been Waived

23 The attorney work product doctrine protects from disclosure documents
24 prepared in anticipation of litigation by or for an attorney, but work product
25 protection is waived where disclosure of the otherwise privileged documents is
26 made to a third party and that disclosure enables an adversary to access the
27 information. See In re Syncor Erisa Litig., 229 F.R.D. at 645 (citing Bergonzi, 216
28
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1 F.R.D. at 497); United States v. Mass. Inst. Of Tech., 129 F.3d 681, 687 (1st Cir.
2 1997).
3 In Bergonzi, for example, the court found that the documents prepared by
4 Skadden were protected from disclosure by the work product doctrine but concluded
5 that work product protection was waived as a result of, inter alia, the company’s
6 disclosure of the documents to the government. 216 F.R.D. at 495-497. “Once a
7 party has disclosed work product to one adversary, it waives work product
8 protection as to all other adversaries.” Id. at 498. Because McKesson disclosed the
9 documents at issue to an adversary, the government, the disclosure constituted a
10 waiver of the attorney work product doctrine, and any work product protection
11 claimed against production to the defendants was also waived. Id.
12 As the court reasoned, “[i]n the final analysis, the ability to prepare one’s case
13 in confidence, which is the chief reason articulated in Hickman for the work product
14 protections, has little to do with talking to the Government.” Id. at 497 (citing In re
15 Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 306-07
16 (6th Cir. 2002)); see also United States v. Thompson, 562 F.3d 387, 394 (D.C.Cir.
17 2009) (“[D]isclosure of work product materials can waive the privilege for those
18 materials if such disclosure, under the circumstances, is inconsistent with the
19 maintenance of secrecy from the disclosing party’s adversary.”) (citation and
20 internal quotation marks omitted).
21 As in Bergonzi, any privileges attaching to the documents listed in the

22 privilege log here have been waived as a result of IMI/CCI’s disclosure of these
23 materials to the government. CCI’s Sentencing Memorandum highlights the extent
24 of IMI/CCI’s disclosure of the otherwise privileged documents:
25 Throughout its investigation, Steptoe, at the direction of [IMI’s]

26 Special Committee, made rolling productions of documents and
27 provided “real time” updates about witness interviews to the
28 Department, pursuant to a non-waiver agreement. Steptoe gave the
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1 Department detailed summaries of the employee interviews and

2 binders of key documents organized by witness. In total, Steptoe gave
3 the Department more than a dozen such interview “downloads,” each
4 covering numerous employees, and produced more than 42,000 pages
5 of documents in hard copy and electronic, searchable format. 11
6 Exh. B, p. 5, lns. 19-28; p. 6, lns. 1-6. Because CCI disclosed the documents
7 identified in the privilege log to the government, such disclosure constituted a
8 waiver of the attorney work product privilege, and any work product protection
9 claimed against production to the Defendants was also waived. Bergonzi, 216
10 F.R.D. at 498.
11 CCI’s waiver also applies to the materials underlying the analyses and charts
12 identified in the privilege log, and the government should be required to produce
13 those documents as well. See In re Leslie Fay, Inc. Sec. Litig., 161 F.R.D. 274, 281
14 (S.D.N.Y. 1995) (holding that waiver of attorney work product and attorney-client
15 privileges applied to documents underlying report to the extent report referenced or
16 concerned the underlying documents); In re OM Group Securities Litigation, 226
17 F.R.D. 579 (N.D. Ohio 2005) (holding that disclosure of presentation materials to
18 adverse party waived attorney-client privilege with regard to presentation materials
19 and underlying documents referred to by presentation materials). Accordingly,
20 Defendants are entitled to these documents under Rule 16(a)(1)(E), and the
21 government should be compelled to produce them.
22
23
24
25
11
26 Defendants have asked the government about the provisions of the non-
waiver agreement referenced in CCI’s Sentencing Memo, but the government has
27
failed to provide this information.
28
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1 d. Documents Missing from the Discovery Produced by the

Government
2
CCI confirms in its Sentencing Memorandum that “Steptoe gave the
3
Department detailed summaries of the employee interviews and binders of key
4
documents organized by witness. In total, “Steptoe gave the Department more than
5
a dozen such interview ‘downloads,’ each covering numerous employees, and
6
produced more than 42,000 pages of documents in hard copy and electronic,
7
searchable format.” Exhibit B, p. 5, lns. 22-26. To date, however, the government
8
has produced only 37,000 pages of documents. Thus, Defendants appear to be
9
missing 5,000 pages of discovery material to the case. To the extent any of the
10
5,000 outstanding pages of discovery are not covered by those documents listed in
11
CCI’s privilege log, discussed in Section III.A.2.c, above, Defendants respectfully
12
request that the Court direct the government to produce this outstanding discovery
13
forthwith.
14
Additionally, several of the documents in the government’s discovery refer to
15
notes or other documents but fail to include those notes or documents. For example,
16
the document bates numbered “CHART0345” has a paperclip photocopied in the
17
corner, and a handwritten notation which reads “see RC notes,” but there are no
18
notes attached to the document. 12 Similarly, documents consecutively bates
19
numbered CHART 1203 through 1206 indicate at the top right corner of each page
20
that they are part of an eight-page e-mail, but pages two, four and seven are not
21
included in the e-mail string. Exh. H. The same is true for document bates
22
numbered CHART 1207, which indicates at the top right corner that it is “Page 1 of
23
2,” but page two is not included in the discovery. Id.
24
25
26
12
See documents bates numbered CHART0345, CHART 1203 – 1206, and
27
CHART 1207 attached as Exhibit H to the Miller Declaration.
28
-22-
1 As each of the documents contained or referenced in the government’s

2 discovery are material to the defense, Defendants necessarily need the documents in
3 their entirety, rather than portions or incomplete e-mail strings for which context
4 and key information is lacking, in order to make meaningful use of the information
5 and adequately prepare for trial. Accordingly, Defendants respectfully request that
6 the Court direct the government to produce the missing pages of discovery identified
7 herein by Defendants, as well as any missing documents Defendants may discover
8 in the future in the course of reviewing the discovery.
9 e. IMI/CCI’s 2007 Investigation Materials

10 Defendants seek the investigation materials Steptoe prepared on behalf of
11 IMI/CCI in connection with the internal investigation in 2007 and 2008, including
12 Steptoe’s report and supporting documentation (“2007 Investigation Materials”)
13 reflecting its determinations referenced in CCI’s Sentencing Memoranda, as these
14 documents are material to the defense. The 2007 Investigation Materials identify
15 the basis for Steptoe’s determinations concerning Defendants’ culpability and will
16 therefore reveal other admissible evidence, such as the identification of third-parties
17 involved in or responsible for the alleged unlawful payments and documents
18 providing context and insight to these transactions and the FICs at issue, largely
19 unidentified by the government to date.
20 Additionally, the 2007 Investigation Materials will likely identify relevant

21 witnesses, such as the 125 witnesses referenced in CCI’s Sentencing Memo who
22 were interviewed by Steptoe, EY or any other investigator in connection with
23 IMI/CCI’s internal investigation. In short, this information is anticipated to
24 strengthen defenses and provide a basis for impeaching the government’s theories
25 regarding Defendants’ culpability. See Bergonzi, 216 F.R.D. at 502 n.17 (noting
26 materiality of internal investigation report under Rule 16 because such information
27 “may shed light on the issue of relative culpability of third parties and provide a
28 basis for impeaching the Government’s theories of culpability with respect to these
-23-
1 defendants”).
2 To the extent the 2007 Investigation Materials include Steptoe’s, EY’s or any
3 other investigator’s interview memoranda or underlying notes of the 125 CCI
4 employee interviews, Defendants are entitled to this information under Rule 16.
5 The interview memoranda reflect statements by CCI employees and third parties
6 interviewed in the course of CCI’s internal investigation of the alleged improper
7 payments that now form the basis of the charges against Defendants. The interview
8 memoranda likely provide facts concerning the alleged improper payments and, as
9 reflected in the government’s 302s, appear to include exculpatory information
10 concerning the facts at issue in the Indictment. For example, the 302 statement of
11 cooperating witness Mario Covino states that during his first interview with Steptoe
12 attorneys, he “did not tell the Steptoe attorneys all that he knew [and] attempted to
13 explain the emails as being benign.”13 To the extent Covino’s statements to Steptoe
14 denied allegations of improper payments or provided alternative explanations
15 regarding the nature of the transactions at issue in this case, such information is
16 patently material to the defense (and, as discussed in section III.B., infra, is
17 exculpatory and discoverable under Brady).
18 Additionally, the interview memoranda of Defendants’ interviews, in

19 particular, are relevant to determine the sufficiency of Steptoe’s warnings to
20 Defendants and whether Defendants’ statements should be suppressed. See United
21 v. Nicholas, 606 F. Supp. 2d 1109, 1116, 1121 (C.D Cal. 2009) (suppressing all
22 evidence reflecting the defendant’s statements made to company attorneys as a
23 result of attorneys’ ethical violations due, in part, to attorneys’ failure to provide
24 Upjohn warnings). Unless the government demonstrates that the interviewees are
25
26
13
See document bates numbered CCI_226, FBI 302 statement of Mario
27
Covino dated February 25, 2008, attached as Exhibit I to the Miller Declaration.
28
-24-
1 prospective or actual government witnesses and those witnesses created the
2 memoranda or adopted and approved the memoranda, such materials are
3 discoverable under Rule 16 and should be produced. See Bergonzi, 216 F.R.D. at
4 500 (holding that interview memoranda are not covered by Jencks Act and are
5 discoverable under Rule 16 because government failed to demonstrate that witnesses
6 were prospective or actual witnesses who created the memoranda or, at least,
7 adopted and approved the memoranda as their statements).
8 The 2007 Investigation Materials, including Steptoe’s interview memoranda,

9 unquestionably influenced the government’s decision-making in this case by
10 focusing the investigation on certain payments and providing facts and evidence
11 concerning the company’s and third-parties’ relative culpability. Accordingly, this
12 discovery is clearly material to Defendants’ case and the government should be
13 compelled to produce it.
14 f. Documents Relating to IMI/CCI’s 2004 Audit

15 In 2004, IMI/CCI conducted an internal audit of commission payments for
16 contracts procured in foreign countries including China and Korea. The Indictment
17 alleges a conspiracy to violate the FCPA and Travel Act dating back to 1998 and
18 charges substantive violations of the FCPA in Counts 2 through 4, and the Travel
19 Act in Count 11 for payments specifically made in 2004 relating to contracts in
20 China and Korea. Indictment, ¶¶ 14, 33, 35.
21 While the government has produced some documents relating to the 2004
22 Audit, such as consulting agreements, e-mails, correspondence, and minutes of IMI
23 board meetings, there are certain documents referenced in this discovery that do not
24 appear to be included in the documents produced to date. For example, the
25 document bates numbered IMI0001 states that “[a] report on the issues arising in
26 relation to the US audit and action taken in response would be made to the [Audit]
27
28
-25-
1 Committee in December.”14 However, the report is not included in the documents
2 the government has produced to date. As some documents relating to the 2004
3 Audit appear to be missing from the government’s production, Defendants seek all
4 documents relating to IMI/CCI’s 2004 Audit of commission payments, including
5 reports and underlying materials, because these documents are material to the
6 defense.
7 The 2004 Audit specifically looked into the alleged improper payment of
8 commissions and expenses by CCI employees in countries including China and
9 Korea, which presumably included payments relating to the contracts now identified
10 in the Indictment, and at least 53 payments identified in the Bill of Particulars for
11 contracts involving China and Korea in 2004. As such, this information is patently
12 discoverable under Rule 16(a)(1)(E), as it will uncover admissible evidence and
13 identify witnesses that are germane to the charges in the Indictment and at least 53
14 payments identified in the Bill of Particulars.15 Significantly, the 2004 Audit
15 apparently determined that no improper payments were made. Accordingly, these
16 documents will strengthen defenses and provide a basis for impeaching the
17 government’s theories of culpability with respect to Defendants’ conduct relating to
18 contracts in China and Korea that are charged in the Indictment.
19 Further, these documents are material because they bear directly on

20 allegations in the Indictment that defendant Stuart Carson attempted to halt the 2004
21 Audit (Indictment, ¶ 24), defendants Rose Carson and Edmonds provided false
22 information to internal auditors during the 2004 Audit (id., ¶ 25), and defendant
23 Edmonds created false invoices in an attempt to mislead CCI auditors regarding
24 certain commission payments. Id., ¶ 26. The 2004 Audit documents also bear
25
14
26 See document bates numbered IMI0001 attached as Exhibit J to the Miller
Declaration.
27 15
See Bill of Particulars attached as Exhibit K to the Miller Declaration.
28
-26-
1 directly on allegations in CCI’s Plea Agreement that defendant Cosgrove instructed
2 CCI employees to withhold information from auditors during the 2004 Audit.16 The
3 2004 Audit documents will undoubtedly uncover admissible evidence concerning
4 these allegations, will corroborate testimony, and will aid in Defendants’ preparation
5 for trial. See United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir. 1998) (holding
6 that inculpatory evidence is just as likely to assist in the preparation of the
7 defendant’s defense as exculpatory evidence).
8 g. Documents Relating to Any Investigations, Audits or

Inquiries Conducted by IMI/CCI into Allegations of
9 Wrongdoing by Defendants
10 Defendants seek all documents relating to any investigations, audits or
11 inquiries (“Inquiries”) conducted by IMI/CCI into allegations of wrongdoing by
12 Defendants because such documents are material to the defense. To the extent
13 documents exist relating to such Inquiries - other than the 2007 Investigation and
14 2004 Audit - they likely contain information relating to IMI/CCI’s findings
15 concerning Defendants’ alleged wrongdoing with respect to their conduct while
16 employed at CCI and, specifically, likely contain information demonstrating that the
17 Inquiries uncovered no wrongdoing by Defendants. As such, this information is
18 discoverable under Rule 16(a)(1)(E) because it will play an important role in
19 uncovering admissible evidence and, to the extent it contains exculpatory
20 information, will strengthen possible defenses.
21 h. IMI/CCI’s FCPA and Travel Act Training Materials

22 Defendants seek IMI/CCI’s training materials relating to FCPA and Travel
23 Act compliance provided to Defendants during the time period covered by the
24 Indictment because they are material to the defense. FCPA and Travel Act training
25 materials will play an important role in uncovering admissible evidence and
26
16
27 See Statement of Facts ¶ 20, attached as Exhibit 1 to CCI Plea Agreement,
attached as Exhibit C to the Miller Declaration.
28
-27-
1 strengthening defenses, including that IMI/CCI failed to provide requisite training to
2 Defendants and that Defendants lacked the requisite scienter to commit FCPA and
3 Travel Act offenses. Accordingly, Defendants are entitled to this discovery under
4 Rule 16(a)(1)(E), and the government should be compelled to produce it.
5 i. The Set of Binders in Ms. Carson’s Office, and the Binder

Mr. Cosgrove Gave to Steptoe
6
Defendants seek the set of binders in Ms. Carson’s possession at CCI as of
7
August 17, 2007, which contain documents relating to commission payments in
8
China, and the binder Mr. Cosgrove prepared and gave to Steptoe during his
9
interview in August 2007 because they are material to the defense. Ms. Carson’s
10
binders contain evidence relating to CCI’s commission payments for China projects,
11
and Mr. Cosgrove’s binder contains information from Mr. Cosgrove concerning
12
CCI’s policies and procedures relating to the procurement of contracts and payment
13
of commissions. This discovery may shed light on Ms. Carson’s and Mr.
14
Cosgrove’s conduct relating to the alleged improper payments and will play an
15
important role in uncovering admissible evidence relating to the facts at issue in the
16
Indictment. Accordingly, Defendants are entitled to this discovery under Rule
17
16(a)(1)(E), and the government should be compelled to produce it.
18
j. Defendants’ Personnel Files
19
Defendants seek their IMI and CCI personnel files because these documents
20
are material to the defense. The government produced only portions of Defendants’
21
CCI personnel files, and failed to include key documents relating to Defendants’
22
employment with IMI and CCI, including Defendants’ performance reviews. In
23
addition to the performance reviews, the personnel files likely contain other
24
documents relating to Defendants’ employment with IMI/CCI, including documents
25
reflecting the scope of Defendants’ job responsibilities, defined and sanctioned by
26
IMI/CCI, as well as information relating to any allegations of wrongdoing by
27
Defendants or IMI and CCI’s recognition of Defendants’ performance. Such
28
-28-
1 discovery will play an important role in uncovering admissible evidence regarding
2 allegations of the alleged misconduct and will strengthen defenses. To the extent
3 Defendants’ performance reviews or other documents in the personnel files indicate
4 that Defendants were cleared of any allegations of misconduct, such information is
5 patently material to allegations in the Indictment and is discoverable under Brady.
6 k. Documents Reflecting Communications Between IMI and/or

CCI and the Government
7
Defendants seek documents reflecting correspondence and communications
8
between IMI/CCI and the government relating to the investigation into the alleged
9
improper payments and expenses because these documents are material to the
10
defense. Such communications include the non-waiver agreement dated October 18,
11
2007, correspondence and drafts of CCI’s Plea Agreement and the statement of facts
12
contained therein, any submissions made by IMI/CCI to the government, CCI’s
13
cooperation with the government, including any communications by the government
14
and/or IMI/CCI to CCI employees or other third-party witnesses directing said
15
individuals not speak to Defendants or their counsel, IMI/CCI’s internal memoranda
16
concerning meetings and telephone conversations with the government, and the
17
agreement between IMI and the government referenced during CCI’s July 31, 2009
18
plea colloquy.17
19
Submissions made by IMI/CCI to the government, and IMI/CCI’s internal
20
memoranda reflecting meetings and conversations with the government concerning
21
the investigation, will uncover admissible evidence and aid in Defendants’
22
preparation for trial. Such documents likely contain CCI’s arguments presented to
23
24
17
See Transcript of July 31, 2009 CCI Change of Plea and Sentencing
25
Hearing at 24, attached as Exhibit L to the Miller Declaration (“There is an
26 agreement between the department and CCI’s parent company, IMI. I’m not sure
that I would consider that a joint agreement, but it has been part of our
27
discussion.”).
28
-29-
1 the government in mitigation of any alleged improper conduct. Because the
2 government alleges that Defendants did the acts complained of in the Indictment for
3 the benefit of IMI/CCI, any of the foregoing information provided by IMI/CCI is
4 exculpatory and must be produced. Further, communications between IMI/CCI and
5 the government are pertinent to the sanctity of the investigative techniques
6 employed.
7 Additionally, correspondence and drafts of CCI’s Plea Agreement or

8 statement of facts to the extent shared between the parties, will include information
9 relating to what CCI was willing to admit to and what the government
10 unsuccessfully sought from CCI. As such, this information will play an important
11 role in uncovering admissible evidence, aiding witness preparation, corroborating
12 testimony, or assisting impeachment or rebuttal. See Stein, 488 F. Supp. 2d at 358-
13 60 (holding that correspondence between KPMG and the government, including (i)
14 statements made during plea negotiations, (ii) KPMG’s internal memoranda relating
15 to meeting and telephone conversations with the government, and (iii) drafts of the
16 statement of facts contained in KPMG’s deferred prosecution agreement, was
17 discoverable under Rule 16 because such information would play an important role
18 in uncovering admissible evidence and aid defendants in trial preparation).
19 Moreover, to the extent these documents reflect CCI’s cooperation with the
20 government’s investigation, or reflect the government’s consideration of CCI’s
21 assistance in the government’s prosecution of Defendants in determining the
22 offenses to charge against CCI, these documents will strengthen Defendants’
23 defense that CCI shifted blame on Defendants and sought to use Defendants as
24 scapegoats while protecting its own interests. See United States v. Pollard, 856 F.2d
25 619, 622 (4th Cir. 1988) (holding that defendant’s Rule 17 subpoena for his
26 employer’s settlement agreement with Department of Defense is of evidentiary
27 value to defendant’s defense that employer made him a scapegoat while protecting
28 its own interests).
-30-
1 Similarly, to the extent the government and/or IMI/CCI directed CCI

2 employees or other third-party witnesses not to speak to Defendants or their counsel,
3 such communications will demonstrate whether the government, or IMI/CCI in its
4 effort to obtain leniency from the government and mitigate its liability, has
5 interfered with Defendants’ due process rights of access to witnesses. See United
6 States v. Black, 767 F.2d 1334, 1338 (9th Cir. 1985) (analyzing whether government
7 interfered with defendant’s due process rights and holding that absent compelling
8 justification, the government may not interfere with defense access to witnesses).
9 Accordingly, Defendants are entitled to this information under Rule 16(a)(1)(E), and
10 the government should be compelled to produce it.
11 l. Documents Reflecting Communications Between IMI/CCI

and Customers or Third-Party Witnesses Regarding the
12 Allegations in the Indictment
13 Defendants seek documents reflecting communications between IMI/CCI and
14 its customers or third-party witnesses concerning the allegations in the Indictment as
15 they are material to the defense. These documents likely reflect statements from
16 IMI/CCI customers and third-parties confirming or denying the receipt of bribes in
17 connection with CCI projects. Additionally, these documents will likely provide
18 details concerning the circumstances under which the projects at issue were awarded
19 to CCI and under which they received entertainment and/or gifts and the individuals
20 involved.
21 As reflected in the article reported on China.Org.CN, CCI customers China

22 Resources Power Holdings (“CRPH”), Datang Power, and Guohua Electric Power
23 (“Guohua”) denied that they were involved with any bribes from CCI.18 The
24 Indictment alleges that defendants Rose Carson and Cosgrove engaged in corrupt
25 dealings with officials at Guohua Power and charges them with making an alleged
26
27 18
See China.Org.CN article attached as Exhibit M to the Miller Declaration.
28
-31-
1 improper payment to a Guohua official in Count 9 (Indictment, ¶ 31, Overt Acts 41-
2 43, ¶ 33), and the Bill of Particulars identifies one alleged improper payment to
3 China Resources Power (Exh. K, payment 82) and five others to Datang Power.
4 Exh. K, payments 53-55, 60, 92.
5 CRPH’s, Datang Power’s and Guohua’s denials directly contradict allegations

6 in the Indictment concerning the alleged payment of bribes to these CCI customers.
7 As such, any information relating to CCI customers’ assertions regarding the
8 allegations in the Indictment are potentially exculpatory and patently material as this
9 information will undoubtedly uncover admissible evidence relating to facts at issue
10 in the Indictment and will strengthen defenses and aid in Defendants’ trial
11 preparation. Accordingly, Defendants are entitled to this discovery under Rule
12 16(a)(1)(E), and the government should be compelled to produce it.
13 m. Documents Relating to the Internal Investigation Conducted

by China National Offshore Oil Corporation and Any Other
14 CCI Customers into Allegations of Bribery by CCI
15 On August 15, 2009, Xinhua General News Service reported that the China
16 National Offshore Oil Corporation (“CNOOC”), one of the alleged victims of the
17 bribery scheme, denied that any of its employees were involved with alleged bribery
18 by CCI.19 Specifically, the article states that a “CNOOC official . . . said no one
19 inside the company has been found to have accepted bribery from [CCI] or its sales
20 agents, according to an internal investigation of the Chinese Company.” (Exh. N.)
21 Significantly, the article also states that CCI admitted to CNOOC in a
22 communication of June 22 that the “payments involved had been wired to personal
23 accounts of CCI staff or friends and relatives of CCI staff. . . . There is no evidence
24 indicating that [bribes] paid by [] CCI had landed in [the] hands of CNOOC staff.”
25
26
19
See Xinhua General News Service Report attached as Exhibit N to the
27
Miller Declaration.
28
-32-
1 Id. The article further states that “CCI has informed the DOJ of the above
2 assertions.” Id.
3 Similarly, on August 22, 2009, ShanghaiDaily.com reported that “CNOOC,

4 Dongfang Electric and Guohua Electric Power have denied involvement in the
5 bribery case after internal investigations[,]” and the Global Times reported on
6 August 30, 2009, that although an investigation conducted by the Chinese State-
7 owned Assets Supervision and Administration Commission (“SASAC”) concluded
8 subsidiaries of China National Petroleum Corporation (“CNPC”) accepted bribes
9 from CCI, “the amount was far less than previously alleged by US authorities.”20
10 According to the Global Times article, the “SASAC investigation showed that
11 CNPC subsidiaries “accepted bribes of less than 10,000 yuan ($1,464) from CCI,
12 instead of the 1.66 million yuan alleged by the US Justice Department.” Exh. O.
13 Defendants seek documents relating to the internal investigation undertaken

14 by CNOOC into allegations of bribery by CCI and/or its employees, including
15 documents reflecting CCI’s review of allegations of bribery by CCI and/or its
16 employees to CNOOC or other CCI customer officials; communications between
17 CCI and/or the government on the one hand, and CNOOC and/or the Chinese
18 government on the other hand, relating to the bribery allegations; the “June 22”
19 communication from CCI to CNOOC specifically referenced in the Xinhua General
20 News Services article, including the “request from [CNOOC to CCI] for a joint
21 investigation;” and all communications between CCI and the government relating to
22 alleged bribery of CNOOC officials by CCI and/or its employees or CNOOC’s
23 internal investigation, because these documents are material to the defense.
24
25
26
20
See ShanghaiDaily.com and Global Times articles attached as Exhibit O to
27
the Miller Declaration.
28
-33-
1 The Indictment alleges Defendants Stuart Carson, Rose Carson, and Paul
2 Cosgrove engaged in corrupt dealings with CNOOC officials between 2003 and
3 2005, and charges them with making an alleged improper payment to a CNOOC
4 official in Count 6. Indictment, ¶ 31, Overt Act Nos. 27-32, ¶ 33. CNOOC’s
5 assertions run directly counter to these allegations in the Indictment concerning the
6 alleged payment of bribes to CNOOC officials. As such, any information relating to
7 those assertions is exculpatory and patently material to the defense, as this
8 information will undoubtedly uncover admissible evidence relating to facts at issue
9 in the Indictment and will aid in Defendants’ trial preparation. As with the CNOOC
10 investigation, Defendants are entitled to any such information relating to any other
11 investigations conducted by CCI customers or related agencies, including Dongfang
12 Electric, Guohua and SASAC.
13 n. The Government is Obligated Under Rule 16(a)(1)(A) and

(B) to Produce the Notes and Written Reports of Defendants’
14 Statements
15 Rules 16(a)(1)(A) and 16(a)(1)(B) require production, upon request, of
16 relevant oral, written, or recorded statements by a defendant. These rules apply
17 expansively to any statements that are or could be relevant. As the Ninth Circuit has
18 explained:
19 Rule 16(a)(1)(A) can fully serve its intended purpose only if the
20 Government takes a broad view of what is relevant for purposes of
21 that provision. We believe the Government should disclose any
22 statement made by the defendant that may be relevant to any possible
23 defense or contention that the defendant might assert. Ordinarily, a
24 statement made by the defendant during the course of the
25 investigation of the crime charged should be presumed to be subject to
26 disclosure, unless it is clear that the statement cannot be relevant.
27 Where the Government is in doubt, the written or recorded statement
28 should be disclosed, if a proper request is made.
-34-
1 United States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982) (modified on other
2 grounds in an unpublished 9th Circuit decision).
3 Discoverable materials include, without limitation, rough or handwritten

4 notes taken by an investigator in any interview of a defendant, United States v.
5 Poindexter, 727 F. Supp. 1470, 1483 (D.D.C. 1989); United States v. Layton, 564 F.
6 Supp. 1391, 1395-96 (D. Or. 1983), as well as any other memorializations of the
7 defendant’s oral statements. See United States v. Johnson, 525 F.2d 999, 1004 (2d
8 Cir. 1975) (verbatim statements and summaries of conversations recorded after the
9 fact are discoverable); see also United States v. Morrison, 43 F.R.D. 516, 519 (N.D.
10 Ill. 1967) (noting that any narrower definition of “statement” would encourage
11 government agents to summarize interviews rather than record them verbatim).
12 The Indictment alleges that Defendants Rose Carson, Cosgrove and Edmonds
13 provided false and misleading information to CCI’s attorneys in connection with
14 CCI’s 2007 internal investigation. Indictment, ¶ 29. Steptoe and EY interviewed
15 these Defendants in August 2007 in connection with IMI/CCI’s internal
16 investigation of alleged improper payments and expenses and took notes of the
17 interviews. To date, however, the government has produced only summaries it
18 prepared of CCI’s “oral description” to the government of the Interviewed
19 Defendants’ statements. Pursuant to Rule 16(a)(1)(A) and (a)(1)(B), Defendants are
20 entitled to the entirety – not just an oral description – of all relevant oral, written, or
21 recorded statements they made, including the notes and reports of the statements
22 made to CCI in August 2007, as they are relevant to allegations concerning
23 Defendants’ alleged false statements to CCI.
24 Because the statements were made in the course of IMI/CCI’s investigation of

25 the crimes now charged against Defendants, Defendants’ statements made to
26 Steptoe and/or EY in August 2007 bear directly on contentions Defendants may
27 assert concerning their involvement and relative culpability in this case. To the
28 extent that the government calls a witness to testify about these statements, it seems
-35-
1 obvious that the witness will have to review such notes or summaries to refresh him
2 or her about the details years after the interviews took place.
3 Further, the notes and any written reports of Defendants’ statements are
4 relevant to whether Steptoe and/or EY were acting as investigators for the
5 government when they interviewed Defendants in August 2007 and whether
6 Defendants’ statements should be suppressed, as they will reflect whether Steptoe
7 and/or EY provided Defendants the requisite warnings prior to conducting the
8 interviews. See Nicholas, 606 F. Supp. at 1116, 1121 (suppressing all evidence
9 reflecting the defendant’s statements made to company attorneys as a result of
10 attorneys’ ethical violations due, in part, to attorneys’ failure to provide Upjohn
11 warnings); Beckwith v. United States, 425 U.S. 341, 347-48 (1976) (noting that
12 proof that some kind of warnings were given or that none were given would be
13 relevant evidence on the issue of whether the questioning was in fact coercive);
14 Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (holding that the protection of the
15 individual under the Fourteenth Amendment against coerced statements prohibits
16 use in subsequent criminal proceedings of statements obtained under threat of
17 removal from office). Accordingly, the court should compel the government to
18 produce the entirety of Defendants’ oral, written, or recorded statements forthwith.
19 B. The Court Should Compel the Government to Produce Exculpatory

Evidence, Including the 2007 Investigation Materials, Correspondence
20 Between IMI/CCI and the Government, and 2004 Audit Documents to
the Extent they Contain Brady Material
21
Defendants seek a court order compelling production of any and all
22
exculpatory information in the possession, custody or control of the government
23
pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The Ninth Circuit liberally
24
construes the Brady rule. As the Ninth Circuit noted in United States v. Miller, 529
25
F.2d 1125 (9th Cir. 1976), “an elemental sense of fair play demands disclosure of
26
evidence that in any way may be exculpatory. . . . [T]he government should resolve
27
all doubts in favor of disclosure . . . since disclosure could cause no harm to the
28
-36-
1 Government while suppression could very well prejudice the defendant.” Id. at
2 1128; see also United States v. Agurs, 427 U.S. 97, 108 (1976).
3 Under Brady, the government must disclose to the defendants all “favorable”
4 evidence that is “material either to guilt or to punishment.” Brady, 373 U.S. at 87.
5 Evidence is favorable and material if it would “tend to exculpate” the defendant or
6 “reduce the penalty.” Id.
7 [T]he proper test for pretrial disclosure of exculpatory evidence

8 should be an evaluation of whether the evidence is favorable to the
9 defense, i.e., whether it is evidence that helps bolster the defense case
10 or impeach the prosecutor’s witnesses[.] If doubt exists, it should be
11 resolved in favor of the defendant and full disclosure made[.] The
12 government should therefore disclose all evidence relating to guilt or
13 punishment which might reasonably be considered favorable to the
14 defendant’s case, even if the evidence is not admissible so long as it is
15 reasonably likely to lead to admissible evidence.
16 United States v. Price, 566 F.3d 900, 913 (9th Cir. 2009) (quoting United States v.
17 Acosta, 357 F. Supp. 2d 1228, 1239-40 (D. Nev. 2005), citing United States v.
18 Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999)). This includes evidence that
19 corroborates the defendant’s theory of the case, see United States v. Hibler, 463
20 F.2d 455, 460 (9th Cir. 1972) (reversing conviction for government’s failure to
21 disclose evidence that corroborated defendant’s story), as well as evidence that casts
22 blame on a codefendant, victim, or other party. Brady, 373 U.S. at 83; Miller, 529
23 F.2d at 1127-28.
24 Pursuant to the Court’s Order re Criminal Trial, dated February 5, 2008,

25 “[u]pon government counsel’s discovery of any evidence within the scope of Brady
26 v. Maryland, 373 U.S. 83 (1963), such evidence shall be produced forthwith to
27 counsel for the defendant.” Despite Defendants’ repeated requests for Brady
28 material, and the Court’s Order directing forthwith disclosure, the government has
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1 withheld certain exculpatory information in this case and has instead produced it
2 only after Defendants have learned of and specifically identified the exculpatory
3 material in the government’s hands.
4 For example, even though each of Defendants made several written requests
5 in June 2009 for immediate disclosure of Brady material, the government initially
6 failed to produce Steptoe’s June 22, 2009 letter addressed to the government that
7 raised “the possibility that some or all of the funds in question were . . . not passed
8 through to employees of customers or end users.”21 Although this letter clearly
9 contains exculpatory information that the government was required to produce
10 forthwith, it failed to do so and instead responded to Defendants on July 24, 2009,
11 stating that the government had complied with its discovery obligations. The
12 government finally produced Steptoe’s letter two months after Defendants’ requests,
13 on August 28, 2009, in response to defendant Stuart Carson’s renewed request for
14 Brady material and specific request for documents relating to the CNOOC internal
15 investigation. The government’s withholding of this required discovery
16 demonstrates that the government is sitting on Brady material despite the Court’s
17 mandate that it produce this information forthwith, and suggests that additional
18 Brady material may exist which the government has yet to produce.
19 Specific exculpatory evidence that may exist to which Defendants are entitled
20 here includes (i) the 2007 Investigation Materials, (ii) correspondence between
21 IMI/CCI and the government, customers, and/or third-party witnesses in which the
22 customers and/or third-party witnesses deny receipt of improper payments or rebut
23 the allegations in the Indictment, (iii) the 2004 Audit documents; (iv) documents
24 relating to any other inquiries conducted by IMI/CCI into allegations of wrongdoing
25
26
21
See June 22, 2009 letter from Steptoe & Johnson to Department of Justice
27
Trial Attorney, Andrew Gentin, attached as Exhibit P to the Miller Declaration.
28
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1 by Defendants; and (v) any witness statements that fail to identify any of the four
2 Defendants as having been involved in the transactions at issue in the Indictment.
3 To the extent that the 2007 Investigation Materials, including Steptoe’s interview
4 memoranda, or IMI/CCI’s correspondence with the government defend the
5 company’s actions and the policies or practices under review or contain denials by
6 CCI employees concerning the facts at issue in the Indictment, these materials are
7 discoverable under Brady as they are likely to contain exculpatory information that
8 will assist in the preparation of the defense.
9 To the extent correspondence from CCI customers/third-party witnesses

10 denies that such persons received bribes in connection with CCI’s projects, this
11 information is exculpatory and discoverable under Brady. Additionally, the 2004
12 Audit documents must also be produced because, as noted above, the 2004 Audit
13 apparently determined that improper payments were not being made. Thus,
14 documents relating to the 2004 Audit are exculpatory and clearly discoverable under
15 Brady.
16 Further, to the extent documents relating to any IMI/CCI inquiries, other than
17 the 2007 Investigation and 2004 Audit, contain information exonerating Defendants
18 from alleged misconduct, these documents also are discoverable under Brady.
19 Similarly, any witness statements that fail to identify any of the four Defendants as
20 having been involved in the transactions or facts at issue in the Indictment, such as
21 omitting any of the four Defendants as having been involved with the arranging
22 and/or approval of the allegedly improper payments, constitutes Brady material to
23 which Defendants are entitled.
24 Defendants are further entitled to the identities and statements of all persons
25 with knowledge of the events described in the Indictment whom the government
26 does not intend to call at trial. If the government is aware of persons who have
27 knowledge of the acts that it alleges as the basis for this prosecution, and if the
28 accounts given by those persons tend to exculpate the Defendants in any way, the
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1 government must divulge that information. See United States v. Cadet, 727 F.2d
2 1453, 1469 (9th Cir. 1984) (holding that no legitimate governmental interest had
3 been suggested to justify denying defendant the identity of witnesses whose
4 testimony may be exculpatory and affirming district court’s order compelling
5 disclosure of such witnesses). Thus, to the extent that any of the more than 125
6 witnesses interviewed by Steptoe and/or EY denied bribery, cast doubt on any
7 bribery allegations, or made any statements favorable to the Defendants, those
8 witnesses must be identified.
9 “[D]isclosure to be effective must be made at a time when the disclosure

10 would be of value to the accused.” Hamric v. Bailey, 386 F.2d 390, 393 (4th Cir.
11 1967); LaMere v. Risley, 827 F.2d 622, 625 (9th Cir. 1987) (due process requires
12 that “disclosure of exculpatory materials be made in sufficient time to permit
13 defendants to make effective use of that material”); see also United States v. Zuno-
14 Arce, 44 F.3d 1420, 1427 (9th Cir. 1995) (“If the prosecution delayed turning over
15 the exculpatory report until the defense could no longer make practical use of it, that
16 is close, in practical effect, to not turning it over at all.”). To assist the defense to
17 prepare effectively for trial and avoid continuances at the time of trial, the Court
18 should separately order immediate disclosure of all exculpatory evidence of which
19 the government is now aware.
20 C. The Court Should Compel the Government to Produce Impeachment

Evidence, Including the 2007 Investigation Materials, 2004 Audit
21 Documents, and Cooperating Witnesses’ Computers and Personnel
Files to the Extent They Contain Giglio Material
22
Evidence that tends to impeach the credibility of any witness relied upon by
23
the government is potentially exculpatory and must be disclosed. See Giglio v.
24
United States, 405 U.S. 150, 153-55 (1972). This includes any information tending
25
to diminish the credibility of the government’s evidence because, for example, it
26
comes from a biased or untrustworthy source. See United States v. Bagley, 473 U.S.
27
667, 676-77 (1985); Giglio, 405 U.S. at 154-55; Napue v. Illinois, 360 U.S. 264, 270
28
-40-
1 (1959). Defendants thus seek all evidence that may impeach the credibility of the
2 government’s prospective witnesses.
3 Specific impeachment evidence to which Defendants may be entitled here

4 includes the 2007 Investigation Materials, the 2004 Audit documents and
5 cooperating witnesses’ computer hard drives and personnel files. The Indictment
6 alleges that Defendants and other CCI employees made false statements to auditors
7 in connection with the 2007 Internal Investigation and the 2004 Audit. Indictment,
8 ¶¶ 25, 29. Further, the plea agreements of former CCI employees/cooperating
9 witnesses Mario Covino and Richard Morlok state that they provided false and
10 misleading information concerning the improper payments during the 2004 Audit.22
11 Thus, to the extent the 2007 Investigation Materials or the 2004 Audit reflect false
12 statements by government witnesses, these items are Giglio material and must be
13 produced to Defendants. The computer harddrives of cooperating witnesses must
14 also be produced as they likely contain information which contradicts the witnesses’
15 statements concerning Defendants’ purported involvement in the alleged improper
16 payments and entertainment expenses. Finally, personnel files of cooperating
17 witnesses may reflect instances of dishonesty or misconduct, may contradict their
18 current attestations of impropriety, and may include poor reviews that could create
19 animus toward one or more of Defendants.
20 As with Brady evidence, prompt disclosure of Giglio material facilitates

21 prompt and complete preparation of the defense and helps ensure a fair trial.
22 Hamric, 386 F.2d at 393. “[I]n order to assist the defendants in their trial
23 preparation,” disclosure should occur “as soon as the government [is] made aware of
24 the defendant’s request” for impeachment materials. Cadet, 727 F.2d at 1467. If
25
26 22
See Covino Plea Agreement, Exhibit A, ¶ 8; Morlok Plea Agreement,
27 Exhibit A, ¶ 7 attached as Exhibits Q and R, respectively, to the Miller
Declaration.
28
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1 the government has a question about the discoverability of any item, that item
2 should be submitted to the Court for in camera inspection. Id. at 1468.
3 In order to prepare effectively to cross-examine the government’s witnesses,

4 the defense must have discovery of impeachment materials well in advance of trial.
5 Accordingly, the Court should compel immediate disclosure of Giglio discovery to
6 Defendants.
7 D. Defendants are Entitled to Statements of Non-Testifying Alleged Co-

conspirators
8
Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that “a statement
9
by a coconspirator of a party during the course and in furtherance of the conspiracy”
10
is not hearsay and is thus admissible against that party at trial.” While production of
11
the prior statements of co-conspirators who will testify at trial is governed by the
12
Jencks Act, defendants are entitled to advance production of the statements of non-
13
testifying co-conspirators made during the course of the alleged conspiracy. See
14
United States v. Payden, 613 F. Supp. 800, 820 (S.D.N.Y. 1983) (holding that
15
broader discovery provided by Rule 16 entitles defendants to statements made by
16
co-conspirators, unlike disclosure of co-conspirators the government intends to call
17
at trial, which is covered by the Jencks Act); United States v. Turkish, 458 F. Supp.
18
874, 882 (S.D.N.Y. 1978). Accordingly, Defendants respectfully request that the
19
Court direct the government to produce a list of persons it considers alleged co-
20
conspirators of each defendant, along with all statements of non-testifying co-
21
conspirators, charged and uncharged, that it intends to introduce against Defendants
22
pursuant to Rule 801(d)(2)(E) at trial.
23
E. The Court Should Direct the Government to Preserve
24 Agents/Investigators’ Notes and Continue to Produce Discovery on an
Ongoing Basis
25
Defendants request that the Court direct the government to preserve all
26
agents/investigators’ notes for use at trial. See United States v. Harris, 543 F.2d
27
1247, 1253 (9th Cir. 1976) (holding that “the FBI must hereafter preserve the
28
-42-
1 original notes taken by agents during interviews with prospective government
2 witnesses or with an accused” so that courts can “determin[e] what evidence must
3 be produced pursuant to the Jencks Act or other applicable law”). Additionally, the
4 government’s disclosure obligations continue throughout a criminal proceeding. See
5 Fed. R. Crim. P. 16(c); Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); Agurs, 427
6 U.S. at 106. As such, Defendants respectfully request that the Court direct the
7 government to produce immediately any discoverable information that it obtains or
8 becomes aware of in the future.
9 F. The Court Should Direct the Government to Comply with the Court’s
Order Regarding the Bill of Particulars
10
The Court’s May 18, 2009 order directed the government to provide a bill of
11
particulars for each of the 236 alleged unlawful payments referenced in the
12
Indictment specifying the date of the payment, the amount of the payment, and the
13
name of the recipient and business affiliation of the recipient, or if the recipient is an
14
intermediary, the business affiliation of the individual who was intended to benefit
15
from the payment. For many of the payments, however, the government’s Bill of
16
Particulars is deficient: (1) it fails to specify the date of the payment, instead listing
17
only the year or range of years in which the payment allegedly was made; (2) it
18
provides only an “approximate amount” as to each of the payments; and (3) it fails
19
to identify the name and business affiliation of the recipient who received the
20
payment (see Exh. K, Payment 27 listing payment made “on or about date” as
21
“2004,” for “approximate amount” of $10,000,” to “Fujian Pacific FIC(s).”)23
22
As a result of these deficiencies, Defendants are often having difficulty
23
identifying the precise payment to which the government is referring, and have
24
25
23
26 The payments for which the Bill of Particulars is deficient are: 1, 2, 5, 8-12,
20-28, 31, 35-36, 39, 43, 48-49, 51, 55, 61-62, 64-69, 72-73, 83, 86-91, 93, 96-101,
27 107-09, 114-15, 117-20, 123-31,137-43, 153, 159, 161, 164, 166-77, 179-80, 182,
184-85, 190, 194-99, 204-06, 209-10, 212, 214-16, 218, 220, 225, 234-36.
28
-43-
1 been left to guess the identity of the recipient and/or beneficiary the government
2 contends received the alleged unlawful payment in many instances. Information
3 that a payment was made in “2004” to unidentified “FIC(s)” at “Fujian Pacific”
4 does not provide the framework for Defendants to mesh the discovery with the
5 Indictment. As the Court noted in its order, “the discovery produced to date leaves
6 [Defendants] to guess which transactions and events will form the Government’s
7 bribery case.” For many of the 236 payments alleged in the Indictment, the Bill of
8 Particulars fails to correct this deficiency and hinders Defendants’ ability to
9 adequately prepare for trial. Accordingly, for those payments for which the
10 government failed to identify the precise date, amount, and recipient of the
11 payment, Defendants respectfully request that, consistent with the Court’s prior
12 order, the Court order the government to supplement its Bill of Particulars with this
13 information.
14 IV. CONCLUSION
15 For the reasons stated, Defendants respectfully request that the Court grant
16 their Motion to Compel Discovery and enter the attached proposed order compelling
17 the government to produce all requested items that remain undisclosed at the time of
18 the hearing on this motion within 30 days of the Court’s order, and Brady and Giglio
19 material, and Defendants’ statements forthwith.
20
21 DATED: September 4, 2009 Respectfully submitted,

22 BIENERT, MILLER, WEITZEL & KATZMAN
23
PLC
24 By: S/Thomas H. Bienert, Jr._________________

25
Thomas H. Bienert, Jr.
Attorneys for Defendant PAUL COSGROVE
26
27
28
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1 GIBSON, DUNN & CRUTCHER LLP

2
3 By: S/Nicola T. Hanna_____________________

4
Nicola T. Hanna
Attorneys for Defendant STUART CARSON
5
6
SIDLEY AUSTIN LLP
7
8 By: S/Kimberly A. Dunne_________________

9
Kimberly A. Dunne
Attorneys for Defendant HONG CARSON
10
11
LAW OFFICES OF DAVID W. WIECHERT
12
13 By: S/David W. Wiechert_________________

14 David W. Wiechert
Attorneys for Defendant DAVID EDMONDS
15
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-45-
1 CERTIFICATE OF SERVICE
2 I, Janine Philips, declare,
3
That I am a citizen of the United States and am a resident or employed in
4 Orange County, California; that my business address is 115 Avenida Miramar, San
Clemente, California 92672; that I am over the age of 18 and not a party to the
5 above-entitled action.
6 That I am employed by a member of the United States District Court for the
Central District of California and at whose direction I caused service of:
7 DEFENDANTS’ JOINT NOTICE OF MOTION AND MOTION TO COMPEL
DISCOVERY; [PROPOSED] ORDER on the interested parties as follows:
8
X_ BY ELECTRONIC MAIL: by electronically filing the foregoing with the
9 Clerk of the District Court using its ECF System pursuant to the Electronic Case
Filing provision of the United States District Court General Order and the E-
10 Government Act of 2002, which electronically notifies said parties in this case:
11
12 AUSA Douglas F. McCormick Nicola T. Hanna, Esq.

13 USACAC.SACriminal@usdoj.gov Nhanna@givsondunn.com
Doug.mccormick@usdoj.gov Eric Raines, Esq.
14 AUSA Hank Bond Walther ERaines@gibsondunn.com
15 Hank.walther@usdoj.gov via electronic mail
via electronic mail
16
17 Kimberly A. Dunne, Esq. David W. Wiechert, Esq.

Kdunne@sidley.com dwiechert@aol.com
18 Alexis Miller, Esq. via electronic mail
19 alexis.miller@sidley.com
Sanjay Bhandari, Esq.
20 sbhandari@sidley.com
21 Christine Cunningham Reynaert, Esq.
creynart@sidley.com
22 Erin M. Garvey, Esq.
23 egarvey@sidley.com
via electronic mail
24
25 Andrew Gentin, Esq.

Andrew.gentin@usdoj.gov
26 via electronic mail
27
28
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1 This certificate was executed on September 4, 2009, at San Clemente,

2
California. I certify under penalty of perjury that the foregoing is true and correct.
3 S/Janine Philips_____
Janine Philips
4
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-47-

Carson - Motion To Compel Discovery

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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 1 of 59

1 Thomas H. Bienert, Jr. (SBN 135311) tbienert@bmwklaw.com

8 Kimberly A. Dunne (SBN 142721) kdunne@sidley.com

7 III. THE DOCUMENTS AND INFORMATION DEFENDANTS

20 c. The Documents Identified in CCI’s

1 iii. Work Product Protection Has

3 d. Documents Missing from the Discovery

5 e. IMI/CCI’s 2007 Investigation Materials ………. 23

6 f. Documents Relating to IMI/CCI’s 2004

8 g. Documents Relating to Any Investigations,

11 h. IMI/CCI’s FCPA and Travel Act Training

13 i. The Set of Binders in Ms. Carson’s Office,

19 l. Documents Reflecting Communications

2 B. The Court Should Compel the Government to Produce

10 D. Defendants are Entitled to Statements of Non-Testifying

12 E. The Court Should Direct the Government to Preserve

6 373 U.S. 83 (1963) ……………………………………………………passim

7 Garrity v. New Jersey

11 386 F.2d 390 (4th Cir. 1967) …………………………………………..40, 41

16 226 F.R.D. 579 (N.D. Ohio 2005) ………………………………………...21

17 In re OM Group Securities Litigation

28 357 F. Supp. 2d 1228 (D. Nev. 2005) ……………………………………37

1 TABLE OF AUTHORITIES CONTINUED:

4 United States v. Agurs

8 685 F.2d 1105 (9th Cir. 1982) …………………………………………....35

9 United States v. Bergonzi

13 727 F.2d 1453 (9th Cir. 1984) ……………………………………40, 41, 42

14 United States v. Harris th

18 870 F.2d 1450 (9th Cir. 1989 ……………………………………………..6

19 United States v. Johnson

23 564 F. Supp. 1391 (D. Or. 1983) ………………………………………35

24 United States v. Liquid Sugars, Inc.

28 914 F.2d 1215 (9th Cir. 1990) ……………………………………………9

1 TABLE OF AUTHORITIES CONTINUED:

4 United States v. Marshall

8 529 F.2d 1125 (9th Cir. 1976) ……………………………………….36, 37

9 United States v. Morrison

13 613 F. Supp. 800 (S.D.N.Y. 1983) ………………………………….…..42

14 United States v. Poindexter

18 566 F.3d 900 (9th Cir. 2009) …………………………………………....37

19 United States v. Stein

23 562 F.3d 387 (D.C.Cir. 2009) ………………………………………….20

24 United States v. Turkish

1 TABLE OF AUTHORITIES CONTINUED:

4 The Foreign Corruption Practices Act of 1977 ……………………...1, 25, 27, 28

5 The Travel Act of 1952 ……………………………………………...1, 25, 27, 28

6 The Jencks Act …………………………………………………………..…….42

15 7 Moore’s Federal Practice § 34.14[2][b] (3d ed. 2006) ………………………6

1 Thomas H. Bienert, Jr. (SBN 135311) tbienert@bmwklaw.com

8 Kimberly A. Dunne (SBN 142721) kdunne@sidley.com

1 TO THE HONORABLE COURT, ALL PARTIES AND THEIR

7 produce the following discovery:

8  Control Components Inc.’s (“CCI”) Electronic Database collected

1 This motion is based on the instant Notice, the attached Memorandum of

3 Miller, and is brought pursuant to Rule 16 of the Federal Rules of Criminal

7 DATED: September 4, 2009 Respectfully submitted,

10 By: S/Thomas H. Bienert, Jr._________________

19 SIDLEY AUSTIN LLP

24 LAW OFFICES OF DAVID W. WIECHERT

1 MEMORANDUM OF POINTS AND AUTHORITIES

5 Carson, Paul Cosgrove and David Edmonds (collectively “Defendants”) of Rancho

6 Santa Margarita-based Control Components Inc. (“CCI” or the “Company”) with