6th Circuit: Metadata Can Be Discovered With Due Diligence

This week, Judge Helene White issued a decision for the Sixth Circuit, United States v. Mehmood, Nos. 19-1243/19-1667/19-1669, 2021 U.S. App. LEXIS 21132 (6th Cir. July 15, 2021), affirming the district court's decision denying the Defendant-Appellant's motion for a new trial based on the discovery of new evidence. Mehmood was convicted of submitting fraudulent claims to Medicare for providing at home physical therapy.

A motion for a new trial based on newly discovered evidence will only be granted if the evidence was discovered after trial and could not have been discovered before trial with due diligence. The evidence must be material and not merely cumulative or impeaching, and must be likely to lead to a reversal of a conviction. Mehmood based his motion on an expert comparison of documents files which showed missing images from a version of the files taken from a cell phone, and the original complete file. The Defendant-Appellant's counsel took photos of patient files with his smartphone. Mehmood's counsel produced the images after the trial and before his sentencing hearing, but the photos and the documents were both in the possession of Mehmood before the trial. There was no question that the document images could be found with due diligence.

Mehmood also argued that metadata generated by a scanner used to image patient files could have aided his defense. Judge White rejected this argument because the metadata was available before trial. "The time to litigate whether Mehmood could access the metadata was before his trial and conviction. Waiting until after conviction to seek a court order for the government to produce evidence that existed long before does not make that evidence newly discovered. Because we agree with the district court that the forensic reports and metadata do not constitute newly discovered evidence that could not have been discovered earlier with due diligence, we find no abuse of discretion in the district court's refusal to hear testimony addressing the substance of that evidence." Id. at *24.