DOJ-OGR-00011186.pdf

Case 1:20-cr-00330-PAE Document 701 Filed 07/12/22 Page 7 of 10 expert opinion testimony, either, and thus no notice objection can be sustained. But in any event the Government is not planning to offer this opinion in its direct examination of Flatley. Instead, it is responsive to an expected line of cross-examination: the defense notice for Examiner Kelso suggests they will challenge whether the defendant ever used Government Exhibit 54. The login data, which shows that the vast majority of logins occurred on the user account "Ghislain," undermines that claim. The defendant can hardly claim that the Government provided insufficient notice of testimony it discussed with the witness in response to the defendant's expert notice and which the Government would only elicit in response to cross-examination on the subject. There is no further opinion contained in the December 5 notes. In response to a question from defense counsel, the Government asked Flatley how he determined the number of user accounts and logins, and Flatley rechecked those numbers. That information is additional detail for the December 2 notes, and not itself expert opinion, new or otherwise. (And the production of 3500 material the same day it was generated is hardly an "untimely disclosure.") - Although the Government has noticed the testimony, the Government is not planning to elicit any expert testimony about "clones." (Def. Letter at 4). He will simply provide fact testimony that he personally created an image of the devices marked for identification as Government Exhibits 54 and 55. - Testimony that "once a file is burned onto a CD, can't unburn it" and "on original CD, created date would be the same date as the modified date," (Def. Letter at 5), is pure fact testimony. It requires no specialized training to know that information; Flatley can testify to those facts based on his personal knowledge. And, again, this is testimony that the Government does not intend to elicit on direct examination, but rather would elicit only in response to cross-examination along 7 DOJ-OGR-00011186