United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN, UNITED STATES DISTRICT JUDGE.
have moved to exclude from evidence any and all DOMEX reports
as non-qualifying summaries under Federal Rule of Evidence
1006 [Doc. 581]. Contrary to defendants' argument,
summaries of subsets of data are admissible as summaries
under Rule 1006. United States v. Bray, 139 F.3d
1104, 1109-10 (6th Cir. 1998); see also United States v.
Sawyer, 85 F.3d 713, 740 (1st Cir. 1996). Defendants
have also contended the Court should exclude the reports
under Federal Rule of Evidence 403 as they risk confusing the
issues, misleading the jury, and wasting time [Doc. 645].
Because the DOMEX reports satisfy the Sixth Circuit's
Bray factors, Bray, 139 F.3d at 1109-10,
governing admissibility of Rule 1006 summaries, and are
admissible under Rule 403, defendants' motion in limine
[Doc. 581] is DENIED.
Federal Bureau of Investigation seized 6, 300 patient files
from pain clinics associated with defendants and located in
and around Knoxville, Tennessee, on March 10, 2015 [Doc. 477
p. 3]. The Document and Media Exploitation Branch of the Drug
Enforcement Administration's National Drug Intelligence
Center (“DOMEX”) quantified and summarized data
from 700 of these patient files [Doc. 477 p. 7-8]. The
government selected 444 of those files based on criteria such
as the location of the patient's death, claimed
disability, indictment in a related case, status as an
undercover agent, or a history of being discharged from one
clinic and sent to an associated clinic [Id. at
DOMEX selected the remaining 256 patient files by using a
computerized random number generator [Id.]. The
government did not ask DOMEX to perform an expert medical
analysis of the files or to extrapolate data to the remaining
5, 400 files but only to summarize specific data points
[Id.]. The following summaries constitute the DOMEX
reports: Summary of Weights by Drug, Summary of Drug Weights
by Provider, Location and Demographics of Patients, Provider
Summary Tables, Payments and Referrals, and Drugs Prescribed
by Provider [Id.]. The first two (2) of these six
(6) DOMEX summaries did not rely on the 700 patient files
[Doc. 628 p. 2 n.3] and are not the subject of
defendants' motion in limine. Consequently, for the
purpose of this order, the “DOMEX reports” will
refer only to the summaries of data from the 700 patient
to defendants, the DOMEX summaries' reliance on only 700
of the 6, 300 files in the government's possession
renders them inadmissible because summaries of a subset of
data are inadmissible under Federal Rule of Evidence 1006 and
the Sixth Circuit's Bray factors [Doc. 581].
Defendants also contend in the supplement to their original
motion that the DOMEX reports are inadmissible under Rule
403, and they move to exclude the reports as misleading and a
waste of time [Doc. 645]. The government opposes
defendants' motion in its original response and
post-hearing brief [Docs. 628, 647].
Rule of Evidence 1006 governs the admissibility of summaries.
The rule provides:
The proponent may use a summary, chart, or calculation to
prove the content of voluminous writings, recordings, or
photographs that cannot be conveniently examined in court.
The proponent must make the originals or duplicates available
for examination or copying, or both, by other parties at a
reasonable time and place. And the court may order the
proponent to produce them in court.
Fed. R. Evid. 1006. The Sixth Circuit in United States v.
Bray, 139 F.3d 1104, 1109-10 (6th Cir. 1998),
interpreted Rule 1006 to impose six preconditions to
admitting a summary chart: (1) the documents must be so
voluminous that they cannot conveniently be examined in court
by the factfinder, but it is not necessary that the documents
be so voluminous as to be literally impossible to examine;
(2) the summary's proponent must have made the documents
available for examination or copying by other parties at a
reasonable time and place; (3) the summary's proponent
must establish that the underlying documents are admissible,
such that a summary based on documents that are inadmissible
for irrelevancy, unfair prejudice, lack of authenticity, or
some other reason would also be inadmissible; (4) the summary
must be accurate and non-prejudicial, meaning that it
summarizes the underlying data accurately, correctly, and in
a nonmisleading way and does not contain conclusions or
inferences; and (5) the summary must be properly introduced,
meaning the proponent should present the testimony of the
witness who supervised its preparation. A summary chart
admitted under Rule 1006, not the underlying documents,
represents “evidence to be considered by the
factfinder.” Id. at 1112. A court's
discretion in admitting summaries under Rule 1006 “will
be upheld absent an abuse of discretion.” Id.
at 1109 (citation omitted).
1006 summary must also be admissible under Federal Rule of
Evidence 403. Rule 403 permits a court to exclude
relevant evidence if its probative value is
“substantially outweighed” by certain dangers,
including unfair prejudice, confusing the issues, and
misleading the jury. “The test is strongly weighted
toward admission.” United States v.
Asher, 910 F.3d 854, 860 (6th Cir. 2018). District
courts enjoy “broad discretion” in performing the
Rule 403 balancing. Id. (citation omitted).
DOMEX summaries are admissible under both Rule 1006 and Rule
403. The summaries satisfy the Bray factors, and
their probative value is not substantially outweighed by the
concerns identified in Rule 403.
Admissibility under Rule 1006 and the Bray
do not contest that the DOMEX reports satisfy the first,
second, and fifth Bray factors, and the reports do
appear to fulfill these requirements. First, the 700 patient
files underlying the DOMEX reports are so voluminous that
they cannot conveniently be examined in court by the
factfinder. Although it might be literally possible
for the jury to examine each of the 700 files, including the
prescriptions, personal data, test screens, and previous
medical records contained therein, the inefficiency of such a
procedure would present a significant inconvenience. Second,
the government has made the patient files and the DOMEX
reports available to defense counsel [Doc. 628 p. 8], and
defendants have not objected that the government failed to do
so at a reasonable time and place [Doc. 581]. As to the fifth
factor, the government states that it plans to introduce the
DOMEX reports through the testimony of Mr. Jon West and/or
Mr. Logan Lake, both ...