United States v. Kimoto

The United States government (plaintiff) charged Kyle Kimoto (defendant) with fraudulent telemarketing. During electronic discovery, Kimoto asked the government to produce its relevant electronically stored information (ESI), but he did not specify the format in which he wanted to see the ESI. The government turned over copies of all the ESI it had reviewed in preparing its case. The government also informed Kimoto that it possessed massive amounts of unreviewed ESI. Kimoto did not request production of the unreviewed ESI. Five months later, just three weeks before trial, Kimoto’s newly hired computer-forensics expert asked to see all the government’s electronic files, whether reviewed or not, in a forensic format that would enable the expert to check the files for signs of data tampering. The government immediately complied with this request. Kimoto did not move for a continuance to allow time for the expert to check the new ESI. Instead, Kimoto moved to dismiss the case, citing the government’s five-month delay in providing both reviewed and unreviewed ESI in forensic format. Kimoto also accused the government of destroying files, similar to ones that Kimoto already possessed, which Kimoto claimed would have bolstered his key defense. Kimoto appealed the federal district court’s denial of his motion to the United States Court of Appeals for the Seventh Circuit.