U.S. Department of Justice
United States Attorney’s Office
District of Delaware

MEMORANDUM
date:

October 15, 2010

subject:

Criminal Discovery Practice in the District of Delaware

to:

All Criminal Division AUSAs
All Criminal Division SAUSAs
All Paralegal Specialists

I.

from:

Keith M. Rosen
Assistant United States Attorney
Chief, Criminal Division

Introduction

Beginning at or about the time a defendant is arraigned, we are obligated to make
disclosures of certain evidence to the defense. Although the discovery obligations placed on the
government by law are quite limited in scope, it historically has been the practice of this office
(“the USAO”) to provide materials well-beyond what is required by the Constitution, federal
statutes and the Federal Rules of Criminal Procedure.
Many lawyers (both within the USAO and outside it) have referred colloquially to our
more expansive discovery practice as “open file” discovery. This term is a misnomer and should
be avoided. We never provide the defense with an “open file” to the extent that that term implies
disclosure of internal USAO memoranda, AUSA notes, and the like. Moreover, in some cases
there will be valid reasons for a less expansive approach, including national security implications
or concern for the safety of witnesses. These reasons could counsel redactions or the nonproduction of certain documents. In any such instances, however, the AUSA must be sure of at
least two things: (a) that production is not required by law; and (b) that the AUSA is prepared to
justify the decision before the district court if the non-production is ever challenged.
That said, the USAO has taken a very broad view of what should be provided to the
defense, and for good reason. Using this approach renders discovery in most cases a
straightforward part of the litigation of a criminal case. Providing broad and early discovery
often promotes the truth-seeking mission of the Department and fosters the efficient resolution of
our cases. Our Court (like most district courts) hates discovery disputes, and there have been
remarkably few over the years. AUSAs should do their best to keep it that way.
On January 4, 2010, Deputy Attorney General David W. Ogden issued a memorandum
entitled Guidance for Prosecutors Regarding Criminal Discovery [hereinafter “the Ogden
Memo”]. The Ogden Memo was developed by a Department of Justice working group, and was
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 intended to establish a methodical approach to consideration of discovery obligations that
prosecutors should follow in every case to avoid lapses that can result in consequences adverse to
the Department’s pursuit of justice.
Recognizing that the practice of law differs in the various federal districts, this
memorandum is designed to build off of the Ogden Memo and provide AUSAs and SAUSAs
with guidance concerning the basic policies and practices that govern criminal discovery in this
district. This memorandum provides prospective guidance only, and is not intended to have the
force of law or create or confer any rights, privileges or benefits for criminal defendants or any
other person. See United States v. Caceres, 440 U.S. 741 (1979).
It is important to recognize that this memorandum will discuss only the most general
principles, policies, and practices. Indeed, specific, case-related considerations may warrant a
departure from the general practices that should be applied by all prosecutors in the USAO. This
memorandum is not intended to answer every question that could arise, and is not a substitute for
careful research, discussion, and deliberation when conducting discovery in a specific case.
Both the Chief of the Criminal Division and the USAO Discovery Coordinator are
available to consult on all these issues. Importantly, if you believe that a material deviation from
the discovery practices described herein is warranted in a given case, you must consult with the
Criminal Chief or the USAO Discovery Coordinator.
II.

Sources of Discovery Obligations
The government’s discovery obligations under law are set forth in the following:
•
•
•
•
•

Federal Rule of Criminal Procedure 16;
Federal Rule of Criminal Procedure 26.2;
Brady v. Maryland, 373 U.S. 83 (1963);
Giglio v. United States, 405 U.S. 150 (1972); and
18 U.S.C. §3500 (the Jencks Act).

In addition, Department policy provides for broader disclosures of exculpatory and impeachment
information than Brady and Giglio require. See USAM §9-5.001. For purposes of this
memorandum, the term “discoverable information” refers to that information required to be
disclosed by these sources.
III.

Initial Disclosures

Beginning at the time of arraignment or a reasonable time thereafter, the assigned AUSA
should provide defense counsel with the initial discovery production. This initial discovery
typically should include the Rule 16 material, and any core Brady material (not including Giglio

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 material). In routine reactive or adopted cases, the principal police reports should be provided
with the initial discovery. Use of redactions and protective orders is appropriate at this stage.
This initial production should be made as close to the time of arraignment as practicable.
The District Court has not to date promulgated any local rules relating to the timing of Rule 16
discovery, however the Court does set the Rule 12 motions deadline (usually 30 days after
arraignment) based on the expectation that we will be making discovery reasonably promptly
after the arraignment. If a case is complex and/or involves voluminous discovery, the assigned
AUSA is encouraged to meet and confer with defense counsel to work out a mutually acceptable
production schedule.
Note that the rules do not require the government to make photocopies of the discovery
materials in all cases; the government is only obliged to make the discovery available for
inspection and copying. AUSAs should inform defense counsel as to how the discovery
materials will be made available. Production of documents in electronic format is encouraged
when discovery is voluminous.
IV.

Jencks Act Material and Investigative Reports

The Jencks Act and Rule 26.2 require that statements of a witness be produced only after
that witness has testified on direct examination. However, it is the practice of the USAO to
provide Jencks Act materials no later than three (3) business days before trial unless there are
compelling reasons (including, for example, articulable concerns for witness safety) for later
production. When the Jencks material in a case is substantial in size, and particularly when there
is no real articulable threat to the safety of witnesses, AUSAs should make an effort to provide
the documents at the earliest practical date, so as to avoid any unnecessary trial delays.
The safety of witnesses and the integrity of the grand jury process are of paramount
importance to the USAO. Accordingly, AUSAs should seek protective orders in any case where
there is a concern about the distribution of Jencks Act materials (or their contents) to persons
beyond the defense team. Such protective orders should prohibit the dissemination of the Jencks
Act discovery to persons not involved in the defense of the case. In the rare case, AUSAs may
also seek protective orders precluding defense counsel from providing copies of certain discovery
materials to the defendant.
IV.1. Witness Statements and Witness Interview Reports
The scope of the Jencks Act is limited. It only requires production of substantially
verbatim transcripts or adopted statements, such as signed statements, signed confessions, grand
jury testimony, in-court testimony from another proceedings, and depositions. See 18 U.S.C.
§3500(e). Strictly speaking, this does not include reports prepared by agents or police officers
summarizing their witness interviews. See United States v. Starusko, 729 F.3d 256, 263 (3d Cir.
1984). It is the practice of the USAO, however, to produce reports of witness interviews when
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 the Jencks material is produced. Subject to case-specific concerns, it is also the practice of the
USAO to produce any relevant and material reports prepared by the case agent(s) in connection
with the case. Again, use of redactions and protective orders are appropriate here, particularly if
the reports contain the opinions of the agents writing the reports.
Although not required by law, the Ogden Memo provides the following guidance with
respect to witness interviews:
•

Generally speaking, witness interviews should be memorialized by the
agent. If audio/video recording is used, further memorialization generally
will not be necessary. “Interview” refers specifically to formal
question/answer sessions conducted for the purpose of obtaining
information pertinent to a case/matter. It does not include conversations
for the purpose of scheduling or other ministerial matters.

•

Agent and prosecutor notes of an interview should be preserved, and
prosecutors should confirm with agents that substantive interviews should
be memorialized.

AUSAs should conform their practice to this guidance.
Agents must be aware of exculpatory or impeaching material provided by witnesses
during interviews, and that material must be included in the final report. If a witness lies during
an interview, but later “comes clean” in the same interview, AUSAs must ensure that the fact of
this “progressive truth-telling” is disclosed in the report or in the agent notes (which must then be
produced). If it is not disclosed, the AUSA must inform the defense of the inconsistency.
IV.2. Interviews of Non-Testifying Individuals
During some investigations, agents will author reports of interviews of individuals who
will not be called as witnesses by the government. Similarly, there will also be occasions when
individuals who testified before the grand jury are not called as witnesses for the government at
trial. Unless these reports/transcripts otherwise contain discoverable information (such as Brady
material), they ordinarily should not be produced. AUSAs should err on the side of production,
however, in assessing whether these reports/transcripts contain otherwise discoverable
information.
IV.3. Agent Rough Notes
Although not required by law or policy, it has historically been the practice of the USAO
to produce agent notes of testifying witness interviews, when available. Rough notes must be
produced, however, if they contain Brady material, and that material is not contained in the final
report of the interview. Rough notes may contain Giglio material if there are material
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 inconsistencies between the notes and the final report, or between the notes and the witness’s
testimony.
The Third Circuit has previously interpreted Rule 16 to require production of an agent’s
notes of an interview with the defendant. AUSAs should take steps to ensure that such notes are
preserved upon becoming aware that such an interview occurred.
In all events, AUSAs should review agent notes, particularly if (a) there is a reason to
believe that the notes are materially different from the interview report; (b) a written
memorandum was not prepared; (c) the precise words used by the witness are significant; or (d)
if the witness disputes the agent’s account of the interview. See Ogden Memo at 8. AUSAs
should pay particular attention to agent notes generated during an interview of the defendant or
an individual whose statement may be attributed to a corporate defendant, as such notes may
contain information that must be produced pursuant to Rule 16. Id.
IV.4

Witness Trial Preparation Sessions

AUSAs will typically meet with witnesses to prepare them for trials, hearings, or
appearances before the Grand Jury. These sessions are not “interviews,” and thus reports
ordinarily will not be prepared. However, a witness during such a session may make a statement
that constitutes Brady material, or is either inconsistent with what the witness said in another
interview, or otherwise discloses information that could be used to impeach the witness. In the
event that this occurs, the information must be disclosed to defense counsel promptly. In most
cases disclosure is accomplished by the agent who attended the session memorializing the
information in a report (which is preferred), or the AUSA preparing a letter to defense counsel.
See also USAM §9-5.001.
V.

Brady and Giglio Material

Generally speaking, Brady obligates the government to disclose exculpatory evidence that
is material to the determination of guilt or the appropriate punishment. Giglio material is
evidence that can be used to impeach government witnesses. In order to ensure full compliance
with our Brady/Giglio obligations, each AUSA should be familiar with the Brady/Giglio case
law in this circuit, USAM §§ 9-5.001 and 9-5.100, and the Ogden Memo.
As a matter of law, Brady contains a materiality requirement. DOJ policy dispenses with
this. See USAM §9-5.001. The USAO has historically taken a broad view of the scope of Brady
and Giglio material as well, consistent with the policy in the USAM. Given the consequences of
nondisclosure, AUSAs should not take risks when it comes to Brady/Giglio; if in doubt, the
material should be disclosed, and disclosed reasonably promptly. If disclosure raises safety or
security concerns, an AUSA should seek appropriate protective orders from the court.

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 Per the Ogden Memo, AUSAs should have candid conversations with federal agents with
whom they work regarding any potential Giglio issues. Our office has established a standardized
procedure for obtaining Giglio information relating to federal agents, and has a Giglio
Coordinator who is responsible for requesting the information from the federal agencies. AUSAs
should be sure that a list of all federal agent trial witnesses is provided to the Giglio Coordinator
sufficiently in advance of trial to allow the review process to take place.
This procedure does not apply to State and Local law enforcement officers. However,
AUSAs are encouraged to have candid conversations with these witnesses as well regarding any
potential Giglio issues. AUSAs should similarly be aware that State and Local police
departments may generate reports (such as Use of Force Reports) that, while not part of the
investigative file, may nonetheless contain discoverable information, including Giglio
information.
The timing of disclosures of Brady and Giglio material differs. Brady material must be
disclosed reasonably promptly after it is discovered, and sufficiently in advance of trial to allow
the defendant to make use of it. Brady material that is relevant to sentencing considerations (but
not proof of guilt) should be provided prior to the dissemination of the initial PSR draft.
However, if there is an articulable basis to believe that early disclosure of Brady or Giglio
material could subject a witness to harassment or intimidation, the AUSA should make an in
camera request of the court for a protective order allowing disclosure to be delayed.1
There is some debate as to whether Brady material must be provided prior to the entry of
a guilty plea. Even if the government is not obligated to provide Brady prior to a plea, the better
practice is to do so.
Giglio material, by contrast, need only be provided at a reasonable time before trial,
which, in this district, is normally at or about the same time as Jencks Act materials are produced
– i.e. no later than three days before trial. AUSAs should resist motions for early disclosure of
Giglio material.
VI.

Witness Identity Information, Confidential Informant Information, and National
Security Cases

The USAO is obligated to protect the privacy of victims/witnesses, particularly as it
pertains to personal identity information. It is the policy of the USAO that victim/witness
identity information, such as Social Security numbers, dates of birth, addresses, and home phone
numbers, should not be provided in discovery. Even if an individual’s identity information is
relevant to the charges (such as in an identity theft case), the AUSA generally should redact the
1

If the Brady material contains classified or otherwise sensitive national security
information, the AUSA should seek appropriate orders permitting the government to delay or
restrict disclosure.
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 discovery so as only to provide the information necessary to establish the relevant fact (e.g. the
last four digits of a Social Security number). AUSAs should make liberal use of protective
orders, as well as redactions, to safeguard this information.
It is also important for AUSAs to use similar means to limit the disclosure of information
about confidential informants beyond what is required by law. AUSAs should be familiar with
the Roviaro line of cases on this topic, and should follow the District Court’s opinion in United
States v. Beckett, 889 F. Supp. 152 (D. Del. 1995), on the disclosure of Giglio information
relating to testifying cooperators. Informants who merely act as tipsters should not be disclosed.
Given that the disclosure of informant information may very well endanger the safety of that
informant and jeopardize other investigations in which the informant has been involved, it is the
policy of the USAO to resist any efforts by defense counsel to obtain informant information
beyond what is required by Beckett, as well as to resist any efforts by defense counsel to obtain
Beckett information earlier than is required by that case.
Defendants will often seek contact information for government witnesses, especially
confidential informants. The government is not required by law to provide such information, and
AUSAs should resist any such requests. AUSAs should only provide witness contact
information if ordered to do so by the Court.
This discovery policy does not govern disclosure in cases involving terrorism and
national security. Cases involving national security, including terrorism, espionage,
counterintelligence, and export enforcement, can present unique and difficult criminal discovery
issues. The Department of Justice has developed special guidance for those cases, which is
contained in Acting Deputy Attorney General Gary G. Grindler’s September 29, 2010,
memorandum, “Policy and Procedures Regarding the Government’s Duty To Search for
Discoverable Information in the Possession of the Intelligence Community or Military in
Criminal Investigations.” Prosecutors should consult that memorandum and their supervisors
regarding discovery obligations relating to classified or other sensitive national security
information. As a general rule, in those cases where the prosecutor, after conferring with other
members of the prosecution team, has a specific reason to believe that one or more elements of
the Intelligence Community (IC) possess discoverable material, he or she should consult NSD
regarding whether to request a prudential search of the pertinent IC element(s). All prudential
search requests and other discovery requests of the IC must be coordinated through NSD.
Although discovery issues relating to classified information are most likely to arise in national
security cases, they may also arise in a variety of other criminal cases, including narcotics cases,
human trafficking cases, money laundering cases, and organized crime cases. In particular, it is
important to determine whether the prosecutor, or another member of the prosecution team, has
specific reason to believe that one or more elements of the IC possess discoverable material in
the following kinds of criminal cases:

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 !

Those targeting corrupt or fraudulent practices by middle or upper officials of a
foreign government;

!

Those involving alleged violations of the Arms Export Control Act or the
International Emergency Economic Powers Act;

!

Those involving trading with the enemy, international terrorism, or significant
international narcotics trafficking, especially if they involve foreign government
or military personnel;

!

Other significant cases involving international suspects and targets; and

!

Cases in which one or more targets are, or have previously been, associated with
an intelligence agency.

For these cases, or for any other case in which the prosecutors, case agents, or supervisors
making actual decisions on an investigation or case have a specific reason to believe that an
element of the IC possesses discoverable material, the prosecutor should consult with NSD
regarding whether to make through NSD a request that the pertinent IC element conduct a
prudential search. If neither the prosecutor, nor any other member of the prosecution team, has a
reason to believe that an element of the IC possesses discoverable material, then a prudential
search generally is not necessary.
Cases involving classified information are governed by the Classified Information
Procedures Act (“CIPA”), 18 U.S.C. App. 3. If an AUSA has a case that involves or implicates
classified information, he/she should consult with the Criminal Chief at the earliest possible
juncture, and, at all events, before any discovery is produced in the case.
VII.

Gathering and Reviewing Discoverable Information

It is the obligation of the AUSA to ensure that any relevant documents and files created or
acquired during the investigation are reviewed, and to ensure that all discoverable information is
produced at an appropriate time in the litigation of the case. This review includes the
investigative files, as well as documents obtained via search warrant or subpoena.
While AUSAs may utilize agents, paralegals, or document database searches to identify
potentially discoverable information, it is ultimately the AUSA that is responsible for the
completeness of the review process and any decisions regarding disclosure/non-disclosure. The
AUSA may not delegate the disclosure responsibility to an agent or staff member.

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 VII.1. Scope of the “Prosecution Team”
It is the obligation of AUSAs, in preparing for trial, to seek all exculpatory and
impeachment information from all members of the prosecution team. USAM §9-5.001. Per the
Ogden Memo, this search duty extends to information prosecutors are required to disclose under
Rule 16, Rule 26.2, and the Jencks Act.
In most cases, the “prosecution team” will include the federal agents in the district who
have worked on the case. In assessing the extent to which AUSAs must review potentially
discoverable information from State and Local law enforcement officers involved in the case, a
three-factor test applies:
1.

Whether the party with knowledge of the information is acting on the
government’s behalf or under its control;

2.

The extent to which state and federal government are part of a team, are
participating in a joint investigation, or are sharing resources; and

3.

Whether the entity charged with constructive possession has ready access
to the evidence.

United States v. Risha, 445 F.3d 298, 303-06 (3d Cir. 2006).
In complex cases that involve parallel proceedings with regulatory agencies or other noncriminal investigative agencies, the AUSA should apply a similar analysis to determine whether
that agency should be considered part of the “prosecution team” for discovery purposes. AUSAs
are encouraged to err on the side of inclusiveness when conducting this analysis.
VII.2. Reviewing Agency Files
With limited exceptions, AUSAs should request, and be granted, access to any federal
law enforcement agency’s substantive case file, as well as any other file or document in that
agency’s possession related to the matter being prosecuted that the AUSA has reason to believe
may contain discoverable information.
AUSAs should ensure that a review is done of the investigative agency’s entire file in the
matter. This review should include not only the investigative reports on the case, but also such
materials as CI/CW/CHS/CS files, and substantive case-related communications. AUSAs should
discuss with the case agents what relevant files exist, and whether files from other investigations,
or non-investigative files, may contain discoverable information.

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 VII.3. Substantive Case-Related Communications
Substantive case-related communications can occur in letters, e-mails, text messages, and
voice mails. These communications are most likely to occur between (a) prosecutors and agents;
(b) prosecutors and victims/witnesses; (c) agents and victims/witnesses; (d) the victim-witness
coordinator and victims/witnesses; and (e) case agents and other agents or supervisors .
“Substantive” communications include:
•

factual reports about investigative activity;

•

factual discussions of the relevant merits of the evidence; and

•

factual discussions of witness interviews or statements by witnesses.

Communications involving case impressions or investigative/prosecutorial strategies, without
more, are generally not considered substantive. AUSAs should be aware that with few (albeit
important) exceptions, the format of the communication does not control whether it is
discoverable.
AUSAs should ensure that any substantive case-related communications in which they
participate are preserved in the case file. AUSAs should similarly instruct the agents working on
the case as to the need for preservation; and should ensure that agents understand that agent-toagent communications (or agent-to-supervisor communications) may also qualify as “substantive
case-related communications,” which should be preserved and provided to the AUSA for
discovery review. AUSAs should also confer with the victim-witness coordinator before trial
about any substantive case-related communications in her files.
VIII. Defense Discovery
Rule 16 and the Jencks Act impose reciprocal discovery obligations on the defense.
AUSAs should make sure that they make reciprocal discovery demands in writing sufficiently in
advance of trial. If the defense fails to respond to the written demand, AUSAs should file a
formal discovery motion, and seek to exclude any defense evidence at trial that was not produced
in accordance with the defendant’s reciprocal discovery obligations.

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 IX.

Keeping a Record

It is critical to maintain a record of what is produced to defense counsel, and when. There
are numerous ways to accomplish this, depending upon the volume of discovery and the manner
of production. Regardless of the method used, all discovery should be Bates numbered. If
redacted materials are produced, the AUSA should keep a record of both the redacted and
unredacted versions.
In those instances where the material is too voluminous to produce, and the AUSA is
making the materials available to the defense for inspection and copying, the case agent should
compile an inventory of those records that have been made available. This inventory should
record the specific dates on which the different materials were made available.

***

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