## Facts

- Federal authorities investigated alleged improprieties and favoritism involving state contracts awarded to Education Networks of America, Inc. (ENA) and efforts to obtain additional contracts.
- Albert Ganier III, ENA’s CEO and founder, was alleged to have acted to impede a federal grand jury investigation.
- The government alleged Ganier attempted to institute an email-retention policy that would delete ENA emails older than six months.
- The government also alleged Ganier deleted files from his computer and from an ENA employee’s computer with intent to obstruct.
- Ganier was charged with obstruction of justice (18 U.S.C. § 1503(a) and § 2) and with altering, destroying, or concealing records in a federal investigation (18 U.S.C. § 1519 and § 2).
- The prosecution planned to call a government computer specialist who used forensic software on mirror-image hard drives to generate reports showing prior computer searches (including dates and search terms tied to the investigation).
- The specialist’s process involved using specialized tools to recover and interpret data and to explain the meaning of the generated reports.

## Issues

1. Whether testimony interpreting computer-forensic software reports constitutes expert testimony under Federal Rule of Evidence 702 (rather than lay opinion under Rule 701), triggering disclosure duties under Federal Rule of Criminal Procedure 16(a)(1)(G).
2. Whether the district court abused its discretion by excluding the testimony and reports as a sanction for a Rule 16(a)(1)(G) disclosure failure without considering less severe remedies.

## Decision

- The Sixth Circuit held that the proposed computer-forensics testimony was expert testimony governed by Rule 702.
- The court held the government failed to comply with Rule 16(a)(1)(G) because it did not provide the required written summary of the expert’s opinions and bases.
- The court vacated the district court’s order excluding the testimony and reports.
- The court remanded for further proceedings, directing reconsideration of an appropriate remedy after weighing alternatives to exclusion.

## Legal Principles

- Testimony that depends on “scientific, technical, or other specialized knowledge” and requires skill beyond ordinary experience is expert testimony under Federal Rule of Evidence 702, not lay testimony under Rule 701.
- Interpreting computer-forensic software output based on recovered and analyzed data generally requires specialized knowledge and therefore falls within Rule 702.
- When the government intends to use expert testimony, Federal Rule of Criminal Procedure 16(a)(1)(G) requires a written summary describing the expert’s opinions and the bases and reasons for them.
- For discovery violations under Rule 16, district courts have discretion to impose sanctions under Rule 16(d)(2), but exclusion is a severe sanction that should not be imposed without considering feasible, less restrictive measures (such as continuances or limiting the testimony) and the circumstances of the violation.

## Conclusion

The Sixth Circuit ruled that computer-forensic interpretation of software-generated reports is expert testimony subject to Rule 702 and Rule 16(a)(1)(G) disclosures, but vacated the district court’s categorical exclusion of the evidence because the court did not adequately consider less severe sanctions for the disclosure violation.


United States v. Ganier, 468 F.3d 920 (6th Cir. 2006)