The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Defendant.
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 21-0598-1 (PLF)
)
TERENCE SUTTON, )
)
)
)
MEMORANDUM OPINION AND ORDER
The government has filed a motion to modify a portion of this Court’s opinion
granting in part and denying in part Mr. Sutton’s third motion to compel discovery. See
Government’s Motion to Modify Production Order (“Mot.”) [Dkt. No. 197]. In its April 22,
2022 opinion, the Court ordered the government to produce all MPD Form 163s (arrest reports) -
that were drafted by Mr. Sutton from the five years prior to October 23, 2020. United States v.
Sutton, Crim. No. 21-0598, 2022 WL 1202741, at *12 (D.D.C. Apr. 22, 2022). The government
now argues that it should not be required to produce these Form 163s because (1) doing so would
be unduly burdensome, and (2) the government has identified a smaller set of MPD Form 10s
(traffic crash reports) that are more relevant and were recently produced. See Mot. at 3. After
careful consideration of the parties’ arguments, the applicable case law, and the entire record in
this case, the Court will grant in part and deny in part the government’s motion to modify. The
Court will order the government to produce Mr. Sutton’s MPD Form 163s for the six-month
period prior to October 23, 2020. !
The documents and the exhibits attached thereto that the Court has considered in
connection with the pending motion include: Mr. Sutton’s Motion to Compel Disclosure of
This opinion assumes familiarity with the case and therefore includes only the
factual and procedural history that is relevant here. See generally United States v. Sutton, 2022
WL 1202741, at *1-3, *7-14 (resolving Mr. Sutton’s third motion to compel discovery).
In its earlier opinion, the Court ordered the government to produce all MPD
Form 163s (arrest reports) prepared by Mr. Sutton in the five years prior to October 23, 2020,
when the events charged in the indictment occurred. See United States v. Sutton, 2022 WL
1202741, at *12. The Court reasoned that the arrest reports “might be relevant” to Mr. Sutton’s
charges of conspiracy and obstruction of justice to the extent that they may be used to
demonstrate whether Mr. Sutton’s allegedly deficient traffic crash report “was consistent in
terms of quality with his prior work product or whether it uncharacteristically ‘minimized’
important details.” Id.; see also id. (observing that Mr. Sutton’s prior reports may “illustrate
[his] standard for report drafting” (alteration in original)).
On July 15, 2022, the government filed its motion to modify, requesting that the
Court require production of only MPD Form 10s (traffic crash reports) — distinct from MPD
Form 163s (arrest reports) — that were drafted by Mr. Sutton during the same five-year time
frame. See Mot. at 3. The government states that it has identified 3,458 MPD Form 163s that
meet the Court’s discovery mandate, but it represents that producing all these arrest reports
would be excessively burdensome and time consuming, as doing so would require manually
exporting each report individually from an MPD electronic database. See id. at2. The
Requested Discovery [Dkt. No. 122]; the Government’s Opposition to Defendant Sutton’s
Motion to Compel Disclosure of Requested Discovery [Dkt. No. 134]; Mr. Sutton’s Reply in
Support of Third Motion to Compel Disclosure of Requested Discovery [Dkt. No. 142]; the
Government’s Motion to Modify Production Order (“Mot.”) [Dkt. No. 197]; Mr. Sutton’s
Opposition to Government’s Motion to Modify Production Order [Dkt. No. 211]; and the
Government’s Reply In Support of Motion to Modify Production Order (“Reply”) [Dkt.
No. 218].
government also states that it has identified and now produced 18 MPD Form 10s thal were
drafted by Mr. Sutton in the five years prior to October 23, 2020. See Mot. at 2-3. In the
government’s view, these traffic crash reports are more relevant to the issues in this case than the
arrest reports because Mr. Sutton is alleged to have “drafted a traffic crash report that minimized
the extent of the observable injuries to Hylton-Brown.” Indictment [Dkt. No. 1] § 47 (emphasis
added); see also Reply at 3 (arguing that the traffic crash reports are more useful comparators
than the arrest reports). Mr. Sutton opposes the government’s motion.
The Court finds that the burden of producing the 3,458 MPD Form 163s to Mr.
Sutton would be substantial. It also agrees with the government that the arrest reports are much
less relevant to the issues in this case than are Mr. Sutton’s traffic crash reports. The Court
credits the government’s representation that the burden of producing the MPD Form 163s was
discovered only after the government’s software vendor began to compile the reports. See Mot.
at 2. Although “burdensomeness and logistical difficulty ... cannot drive the decision whether
items are ‘material’ to preparation of the defense” under Rule 16 of the Federal Rules of
Criminal Procedure, they are factors to be seriously considered in resolving discovery disputes.
United States v. O’Keefe, Crim. No. 06-0249, 2007 WL 1239204, at *2 (D.D.C. Apr. 27, 2007).
The government has established undue burden.
The Court is also persuaded by the government’s argument that the 18 traffic
crash reports drafted by Mr. Sutton are more demonstrative of Mr. Sutton’s “standard for report
drafting” than are his arrest reports. The indictment alleges that Mr. Sutton deficiently drafted a
traffic crash report. See Indictment 447. Most of Mr. Sutton’s arrest reports presumably were
prepared in relation to incidents that did not involve traffic crashes and were quite different from
Mr. Hylton-Brown’s crash and death. Although the arrest reports might possibly illustrate Mr.
Sutton’s general standard for drafling, his traffic crash reports are direct examples of his standard
for drafting the exact type of report that is at issue in this case.
Considering the burden of producing 3,458 MPD Form 163s along with their
limited relevance, the Court concludes that it is unnecessary for the government to produce all of
the Form 163s to Mr. Sutton. Still, Mr. Sutton’s arrest reports may have some limited value in
demonstrating his general standard for report drafting, and Mr. Sutton should be able to explore
that possibility. The Court therefore will order the government to produce to Mr. Sutton all
MPD Form 163s prepared by Mr. Sutton in the six-month period prior to October 23, 2020.
Accordingly, it is hereby
ORDERED that the Government’s Motion to Modify Production Order [Dkt.
No. 197] is GRANTED IN PART and DENIED IN PART; and it is
FURTHER ORDERED that the government shall produce to Mr. Sutton all MPD
Form 163s prepared by Mr. Sutton in the six-month period prior to October 23, 2020.
PAUL L. FRIEDMAN~
United States District Judge
SO ORDERED.
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