Opinion
ORDER DEFERRING RULING ON ORDER APPEAL OF DISCOVERY [re: docket no. 101]
This disposition is not designated for publication and may not be cited.
JEREMY FOGEL, District Judge
The Government has appealed Magistrate Judge Trumbull's order to produce certain documents relating to the practices and procedures of the laboratory that analyzed, on the Government's behalf, the drugs seized from Defendant. After briefing by the parties, the Court heard oral argument on June 27, 2007.
Defendant argues that under Fed. R. Crim. P. 16 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), no preliminary showing as to possible error in an expert's report is necessary to discover contextual documentation that could support an attack upon the report. If Defendant's argument were taken to its logical conclusion, the result would be (as Defendant's counsel conceded at oral argument) that any person charged with a drug crime could discover lab manuals and other similar internal materials without making a particularized showing that the Government expert's results might be inaccurate. In civil cases, a party requesting a hearing under Daubert must call an expert's testimony or its basis "sufficiently into question" to avoid an unnecessary reliability hearing. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149, 152 (1999). Accordingly, one legal question posed by Defendant's argument is whether the Confrontation Clause requires a court to apply a lower standard of sufficiency (or no standard at all) in granting a Daubert hearing in criminal cases. Courts should avoid the resolution of constitutional issues where possible. See e.g. Kuba v. 1-A Agric. Assoc., 387 F.3d 850, 856 (9th Cir. 2004). Because counsel for Defendant represents that a particularized showing can be made regarding the inaccuracy of the Government's test, the Court concludes that Defendant should attempt to do so before the Court considers novel issues arising under the Federal Constitution. Accordingly, the Court will defer ruling on the instant appeal until Judge Trumbull has had the opportunity to consider in camera submissions of Defendant suggesting error in the report of the Government's expert. Defendant shall proceed expeditiously so that Judge Trumbull may consider the matter prior to the next status conference before this Court.
IT IS SO ORDERED.