OFFICE OF THE UNITED STATES ATTORNEY FOR THE DISTRICT OF MAINE
DISCOVERY POLICY
Introduction
This policy has two parts. Part 1 addresses the process of gathering and reviewing
potentially discoverable information. Part 2 addresses the process of disclosing discoverable
information, including the scope and timing of such disclosures.
Federal prosecutors’ disclosure obligations are generally set forth in Fed. R. Crim. P. 16
and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady, and Giglio (collectively referred to herein as
"discovery obligations"). AUSAs must familiarize themselves with each of these provisions and
controlling case law that interprets these provisions. In addition, AUSAs should be aware that
USAM §9-5.001 details the Department's policy regarding the disclosure of exculpatory and
impeachment information.
Part 1: Gathering and Reviewing Discoverable Information
A. Where to look—The Prosecution Team
Department policy states:
It is the obligation of federal prosecutors, in preparing for trial, to seek all
exculpatory and impeachment information from all members of the prosecution
team. Members of the prosecution team include federal, state, and local law
enforcement officers and other government officials participating in the
investigation and prosecution of the criminal case against the defendant.
USAM §9-5.001. This search duty also extends to information prosecutors are required to
disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.
In most cases, "the prosecution team" will include the agents and law enforcement
officers within the District of Maine working on the case. In multi-district investigations,
investigations that include both Assistant United States Attorneys and prosecutors from a
Department litigating component or other United States Attorney's Office (USAO), and parallel
criminal and civil proceedings, this definition will necessarily be adjusted to fit the
circumstances.
Many cases arise out of investigations conducted by multi-agency task forces or
otherwise involving state law enforcement agencies. In such cases, AUSAs should consider (1)
whether state or local agents are working on behalf of the AUSA or are under the AUSA’s
control; (2) the extent to which state and federal governments are part of a team, are participating
in a joint investigation, or are sharing resources; and (3) whether the AUSA has ready access to
the evidence. Carefully considered efforts to locate discoverable information are more likely to
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 avoid future litigation over Brady and Giglio issues and avoid surprises at trial.
B. What to Review
To ensure that all discovery is disclosed on a timely basis, generally all potentially
discoverable material within the custody or control of the prosecution team should be reviewed.1
The review process should cover the following areas:
1. The Investigative Agency's Files: With respect to Department of Justice law
enforcement agencies, with limited exceptions,2 the AUSA should be granted access to the
substantive case file and any other file or document the AUSA has reason to believe may contain
discoverable information related to the matter being prosecuted.3 Therefore, the AUSA can
personally review the file or documents or may choose to request production of potentially
discoverable materials from the case agents. The investigative agency's entire investigative file,
including documents such as FBI Electronic Communications (ECs), inserts, emails, etc., should
be reviewed for discoverable information. If such information is contained in a document that
the agency deems to be an "internal" document such as an email, an insert, an administrative
document, or an EC, it may not be necessary to produce the internal document, but it will be
necessary to produce all of the discoverable information contained in it. AUSAs should also
discuss with the investigative agency whether files from other investigations or non-investigative
files such as confidential source files might contain discoverable information. Those additional
files or relevant portions thereof also should be reviewed as necessary. With respect to non-DOJ
federal agencies and state and local law enforcement agencies, the AUSA should request access
to files and/or production of all potentially discoverable material and should proceed in a manner
consistent with this paragraph to the extent possible.

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How to conduct the review, and by whom it will be conducted, is discussed below. It is
understood that compliance with this portion of the policy will require the cooperation of the
various investigative agencies. In the event of a disagreement between the AUSA and an
investigative agency, the AUSA should consult his or her supervisor in order to resolve the
disagreement.
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Exceptions to a prosecutor's access to Department law enforcement agencies' files are
documented in agency policy, and may include, for example, access to a non-testifying source's
files.
3

Nothing in this guidance alters the Department's Policy Regarding the Disclosure to
AUSAs of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses
contained in USAM §9-5.100.
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 2. Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files:
The credibility of cooperating witnesses or informants will always be at issue if they testify
during a trial. Therefore, AUSAs are entitled to access to the agency file for each testifying CI,
CW, CHS, or CS. Those files should be reviewed for discoverable information and copies made
of relevant portions for discovery purposes. The entire informant/source file, not just the portion
relating to the current case, including all proffer, immunity, and other agreements, validation
assessments, payment information, and other potential witness impeachment information should
be included within this review. If an AUSA believes that the circumstances of the case warrant
review of a non-testifying source's file, the AUSA should follow the agency's procedures for
requesting the review of such a file.
AUSAs should take steps to protect non-discoverable, sensitive information found within
a CI, CW, CHS, or CS file. Further, AUSAs should consider whether discovery obligations
arising from the review of CI, CW, CHS, and CS files may be fully discharged while better
protecting government or witness interests such as security or privacy via a summary letter to
defense counsel rather than producing the record in its entirety.
AUSAs must always be mindful of security issues that may arise with respect to
disclosures from confidential source files. Prior to disclosure, AUSAs should consult with the
investigative agency to evaluate any such risks and to develop a strategy for addressing those
risks or minimizing them as much as possible, consistent with discovery obligations.
3. Evidence and Information Gathered During the Investigation: Generally, all evidence
and information gathered during the investigation should be reviewed, including anything
obtained during searches or via subpoenas, etc.
4. Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in
Parallel Civil Investigations: If an AUSA has determined that a regulatory agency is a member of
the prosecution team for purposes of defining discovery obligations, that agency's files should be
reviewed. Where there is an ongoing parallel civil proceeding in which Department civil
attorneys are participating, such as a qui tam case, appropriate access to the civil case files
should be requested.
5. Substantive Case-Related Electronic Communications: "Substantive" case-related
communications, including e-mails, may contain discoverable information. Although
substantive communications within e-mails should be avoided where possible, those
communications that do contain discoverable information should be maintained in the case file
or otherwise preserved in a manner that associates them with the case or investigation.
"Substantive" case-related communications are most likely to occur (1) among AUSAs and/or
agents, (2) between AUSAs and/or agents and witnesses and/or victims, (3) between victimwitness coordinators and witnesses and/or victims, and (4) between one agent and another

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 agent.4 "Substantive" communications include factual reports about investigative activity,
factual discussions of the relative merits of evidence, factual information obtained during
interviews or interactions with witnesses/victims, and factual issues relating to credibility.
Communications involving case impressions or investigative or prosecutive strategies without
more would not ordinarily be considered discoverable, but substantive case-related
communications should be reviewed carefully to determine whether all or part of a
communication (or the information contained therein) should be disclosed.
AUSAs should also remember that with few exceptions (see, e.g., Fed.R.Crim.P.
16(a)(1)(B)(ii)), the format of the information does not determine whether it is discoverable. For
example, material exculpatory information that the AUSA receives during a conversation with an
agent or a witness is no less discoverable than if that same information were contained in an
email. When the discoverable information contained in an email or other communication is fully
memorialized elsewhere, such as in a report of interview or other document(s), then the
disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure
obligation.
6. Potential Giglio Information Relating to Law Enforcement Witnesses: The Office’s
“Plan to Implement the Attorney General’s Policy Regarding the Disclosure of Potential
Impeachment Information Concerning Law Enforcement Agency Witnesses” dated December
11, 2007, (LEO Giglio Policy) sets forth the Office Policy regarding law enforcement
impeachment information. AUSAs should have candid conversations with the federal agents
with whom they work regarding any potential Giglio issues, using the prescribed form for such
conversations that appears in the office forms directory.
7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and
Fed.R.Evid. 806 Declarants: All potential Giglio information known by or in the possession of
the prosecution team relating to non-law enforcement witnesses should be gathered and
reviewed. That information includes, but is not limited to:
•Prior inconsistent statements
•Statements or reports reflecting witness statement variations (see below)
•Benefits provided to witnesses including:
- Dropped or reduced charges
- Immunity
- Expectations of downward departures or motions for reduction of sentence
- Assistance in a state or local criminal proceeding
- Considerations regarding forfeiture of assets

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E-mails containing substantive information that are either sent to or by USAO personnel
should be printed and filed in the appropriate case file. Agents should similarly be encouraged to
print and retain substantive e-mails. Primary reliance on e-mail archive retrieval processes as a
method of storing substantive e-mails is to be discouraged.
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Stays of deportation or other immigration status considerations
S-Visas
Monetary benefits
Non-prosecution agreements
Letters to other law enforcement officials (e.g., state prosecutors, parole
boards) setting forth the extent of a witness' assistance or making substantive
recommendations on the witness' behalf
- Relocation assistance
- Consideration or benefits to culpable or at risk third-parties
•Other known conditions that could affect the witness' bias such as:
- Animosity toward defendant
- Animosity toward a group of which the defendant is a member or
with which the defendant is affiliated
- Relationship with victim
- Known but uncharged criminal conduct (that may provide an
incentive to curry favor with an AUSA)
•Prior acts under Fed.R.Evid. 608
•Prior convictions under Fed.R.Evid. 609
•Known substance abuse or mental health issues or other issues that could affect
the witness' ability to perceive and recall events
8. Information Obtained in Witness Interviews: Although not required by law, generally
speaking, witness interviews5 should be memorialized by the agent.6 When an AUSA
participates in an interview with an investigative agent, the AUSA and agent should discuss
note-taking responsibilities and memorialization before the interview begins (unless the AUSA
and the agent have established an understanding through prior course of dealing). Whenever
possible, AUSAs should not conduct an interview without an agent present to avoid the risk of
making themselves a witness to a statement and being disqualified from handling the case if the
statement becomes an issue. If exigent circumstances make it impossible to secure the presence
of an agent during an interview, AUSAs should try to have another office employee present.

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"Interview" as used herein refers to a formal question and answer session with a
potential witness conducted for the purpose of obtaining information pertinent to a matter or
case. It does not include conversations with a potential witness for the purpose of scheduling or
attending to other ministerial matters. Potential witnesses may provide substantive information
outside of a formal interview, however. Substantive, case-related communications are addressed
above.
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In those instances in which an interview was audio or video recorded, further
memorialization will generally not be necessary. AUSAs should encourage investigative agents
to make a separate report of each interview session and should discourage the practice of writing
a “rolling report” containing a summary of multiple interview sessions.
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 Interview memoranda of witnesses expected to testify, and of individuals who provided relevant
information but are not expected to testify, should be reviewed.
a. Witness Statement Variations and the Duty to Disclose: Some
witnesses' statements will vary during the course of an interview or investigation.
For example, they may initially deny involvement in criminal activity, and the
information they provide may broaden or change considerably over the course of
time, especially if there are a series of debriefings that occur over several days or
weeks. Material variances in a witness' statements should be memorialized, even
if they are within the same interview, and they should be provided to the defense
as Giglio information.
b. Trial Preparation Meetings with Witnesses: Trial preparation meetings
with witnesses generally need not be memorialized. However, AUSAs should be
particularly attuned to new or inconsistent information disclosed by the witness
during a pretrial witness preparation session. New information that is exculpatory
or impeachment information should be disclosed consistent with the provisions of
USAM §9-5.001 even if the information is first disclosed in a witness preparation
session. Similarly, if the new information represents a variance from the witness'
prior statements, AUSAs should memorialize and disclose as necessary.
c. Agent Notes: It is not the policy of this office to produce as a matter of
course in discovery the rough notes of agents or AUSAs. Be aware that the First
Circuit Court of Appeals has cautioned the Government that rough interview
notes should be preserved even when the notes are subsequently incorporated into
a more formal report. See United States v. Colon-Diaz, 521 F.3d 29, 40 n.8 (1st
Cir. 2008). Accordingly, agent notes should be reviewed if there is a reason to
believe that the notes are materially different from the memorandum, if a written
memorandum was not prepared, if the precise words used by the witness are
significant, or if the witness disputes the agent's account of the interview. 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. Such notes may contain information that must be disclosed pursuant
to Fed.R.Crim.P. 16(a)(1)(A)-(C) or may themselves be discoverable under
Fed.R.Crim.P. 16(a)(1)(B). See also, United States v. Clark, 385 F.3d 609,
619-20 (6th Cir. 2004) and United States v. Vallee, 380 F.Supp.2d 11, 12-14 (D.
Mass. 2005).
d. Reports of Interviews: Reports of interviews (ROI), including FBI 302's, DEA
6's and the like, of testifying witnesses are technically not Jencks material of the
interviewee unless the report reflects the statement of the witness substantially verbatim
or the witness has adopted it. However, such ROI’s may contain information that must
be disclosed pursuant to Fed.R. Crim.P. 16(a)(1)(A)-(C). They may contain
inconsistencies with the witness’ trial testimony or may otherwise contain Giglio material
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 relating to the witness. Failure to provide ROI’s as discovery thus creates risks of
inadvertent discovery violations. Therefore, ROI’s should normally be treated as Jencks
Act material relating to the testifying witness for discovery purposes. Keep in mind that
reports of interview of non-testifying witnesses may contain discoverable information
including Brady and Giglio material.
C. Persons Conducting the Review- Delegation to Agents and Paralegals
It is the responsibility of the AUSA to ensure that the above-described categories of
material are reviewed to identify discoverable information. It would be preferable if AUSAs
could review the information themselves in every case, but such review is not always feasible or
necessary. The AUSA is ultimately responsible for compliance with discovery obligations.
Accordingly, the AUSA should develop a process for review of pertinent information to ensure
that discoverable information is identified. Because the responsibility for compliance with
discovery obligations rests with the AUSA, the AUSA’s decision about how to conduct this
review is controlling. This process may involve agents, paralegals, agency counsel, and
computerized searches. Although AUSAs may delegate the process and set forth criteria for
identifying potentially discoverable information, AUSAs should not delegate the disclosure
determination itself.
Part 2: Making the Disclosures
A. General Considerations
The District of Maine has no local rule which dictates the scope or timing of discovery.
Instead, it is the practice of the Court to issue an Order in Respect to Discovery on the day of the
defendant’s arraignment. The standard order requires the prosecutor and the defendant’s counsel
to meet and confer within five days of the date of the order on all discovery and pretrial
production matters in the case. The AUSA should ensure that this meeting takes place in
accordance with the court order and should appropriately document the date of the meeting and
of any failed attempts to arrange the meeting. During that meeting, the prosecutor should ensure
that counsel discusses the production of discovery by the Government under Fed. R. Crim. P. 16
(including a discussion of making documents and objects available for inspection/copying) and
the defendant’s reciprocal discovery obligations under the rule. In particular, the AUSA should
inform defense counsel of the Government’s intentions regarding the timing of Jencks Act
production and should discuss any conditions that will be imposed in return for early production
of Jencks Act material. This Office’s policy is consistent with DOJ policy of encouraging
prompt discovery that is not unnecessarily restrictive in scope. Discovery obligations are
continuing, and AUSAs should always be alert to developments occurring up to and through trial
of the case that may impact their discovery obligations and require disclosure of information that
previously was not disclosed.
Once the attorneys have conferred regarding discovery, the AUSA should document the
discussions by writing and sending to defense counsel the standard discovery letter that appears
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 in the forms directory. That letter should set forth the government’s position, and any
agreements reached, regarding pretrial production. The letter should also document all materials
that are being provided at that time. Similarly, any further disclosures that are made thereafter
should be documented.
B. Scope and Timing of the Disclosures
1. General Rule
Providing discovery at an earlier point in a proceeding than is required by law often
promotes the truth-seeking mission of the Department and fosters a speedy resolution of many
cases. It also provides a margin of error in case the AUSA’s good faith determination of the
scope of appropriate discovery is in error. Sometimes, a defense attorney cannot properly advise
a defendant whether to enter a guilty plea until the attorney reads the Jencks Act material. It is
often the case that providing Jencks Act material at an early stage of the proceedings results in
the defendant pleading guilty. Therefore, AUSAs are encouraged to consider providing broad
and early discovery when they can do so in a manner consistent with the countervailing
considerations described below.
2. Countervailing considerations.
However, when providing discovery, AUSAs should always consider any appropriate
countervailing concerns in the particular case, including, but not limited to the following:
•Protecting victims and witnesses from harassment or intimidation
•Protecting the privacy interests of witnesses
•Protecting privileged information
•Protecting the integrity of ongoing investigations
•Protecting the trial from efforts at obstruction
•Protecting national security interests
•Investigative agency concerns
•Enhancing the likelihood of receiving reciprocal discovery by defendants
•Any applicable legal or evidentiary privileges
•Other strategic considerations that enhance the likelihood of achieving a just result in a
particular case
AUSAs should never describe the discovery being provided as "open file." Even if the
AUSA intends to provide expansive discovery, it is always possible that something will be
inadvertently omitted from production and the AUSA will then have unintentionally
misrepresented the scope of materials provided. Furthermore, because the concept of the "file"
is imprecise, such a representation exposes the AUSA to broader disclosure requirements than
intended or to sanction for failure to disclose documents, e.g., agent notes or internal memos,
that the court may deem to have been part of the "file." When the disclosure obligations are not
clear or when the considerations above conflict with the discovery obligations, AUSAs may seek
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 a protective order from the court addressing the scope, timing, and form of disclosures.
C. Specific Time Frames
1. Rule 16 Material: Materials described in Rule 16(a)(1) should be provided as soon as
practical following arraignment.
2. Brady Material: Exculpatory information, regardless of whether the information is
memorialized, must be disclosed to the defendant reasonably promptly after it is discovered and
in any event within a time so as to permit its effective use by the defense.
3. Impeachment Material: Impeachment information, which depends on the AUSA’s
decision on who is or may be called as a government witness, should be disclosed at a reasonable
time before trial or hearing so as to permit its effective use and so as to allow the trial or hearing
to proceed efficiently. Generally, routine Giglio material such as cooperation agreements,
payments and other rewards, criminal records and prior inconsistent statements will be provided
at the time that Jencks Act material is provided. If Jencks Act material is being provided by
agreement in advance of the time required by law, then related routine Giglio material will not
necessarily be provided at the same time. In any event, Giglio material is to be provided within a
time so as to permit its appropriate use by the defense.
4. Jencks Act Material: Witness statements, grand jury transcripts and other materials
that come within the Jencks Act should be produced at the earliest practical time taking into
consideration the general rule and countervailing considerations discussed above. Normally,
Jencks Act material should be disclosed no less than five business days before the evidentiary
portion of the trial begins and a comparable period of time before any testimonial motion or
sentencing hearing. If an AUSA believes that significant witness security issues prevent
disclosure within this time frame, he or she shall consult with a supervisory AUSA before
making a disclosure later than five days before trial.
5. Pre-Indictment Production: While Rule 16 does not apply to the pre-indictment phase
of a criminal case, it is often advisable for the AUSA to disclose Rule 16 and Jencks material to
the defense before an indictment is returned in order to facilitate a guilty plea to an information.
When considering whether to make such a disclosure, the AUSA should apply the general rule
and countervailing considerations discussed under B. above.
D. Form of Disclosure
All discovery materials should be provided in an appropriate searchable electronic
format. In some cases, including small cases with a limited volume of material, the AUSA may

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 choose to provide discovery in paper format.7 In any case in which there is an articulable
concern about the security of discovery materials, before making a disclosure the AUSA should
obtain defense counsel’s agreement not to further copy the material and not to leave the material
in the possession of the defendant. If necessary to prevent such further copying or disclosure,
the AUSA should obtain an appropriate protective order. In such cases, each page of discovery
provided to a defendant should be imprinted with a watermark containing that defendant’s name.
Normally, materials will be provided in their original form, such as copies of witness
statements, investigative reports and other documents. However, there are instances in which
providing materials in their original form is prohibited or is otherwise not advisable, such as
when the disclosure would create security concerns or when such information is contained in
attorney notes, internal agency documents, confidential source documents, Suspicious Activity
Reports, etc. If discoverable information is not provided in its original form and is instead
provided in a letter to defense counsel, including particular language, where pertinent, AUSAs
should take great care to ensure that the full scope of pertinent information is provided to the
defendant.
E. Special Statutory Procedures
Congress has enacted special discovery procedures to deal with particular types of
information and material that is subject to discovery in a criminal prosecution. For example, the
Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) includes a provision
limiting the availability of child pornography to the defense. The relevant provision of the Adam
Walsh Act requires a court to deny “any request by the defendant to copy, photograph, duplicate,
or otherwise reproduce any property or material that constitutes child pornography (as defined
by section 2256 of this title), so long as the Government makes the property or material
reasonably available to the defendant.” 18 U.S.C. § 3509(m). The statute compels the
Government to provide a defendant, his attorney, and any expert for the defense “ample
opportunity for inspection, viewing, and examination” of the material at a government facility.
AUSAs should be familiar with any applicable statutory discovery requirements.
F. Cases involving national security issues
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.”

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If there are any materials that are not provided in either paper or electronic format, but
rather are made available at the USAO for the defense to inspect, then the AUSA should make a
record of having made those materials available and the fact that the defense inspected them.
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 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:
•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
•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.

The policy is subject to legal precedent, court orders, and local rules. It
provides prospective guidance only and is not intended to have the force of
law or to create or confer any rights, privileges, or benefits. See United States
v. Caceres, 440 U.S. 741 (1979). This policy does not govern disclosure in cases
involving terrorism and national security. Policy concerning these cases will
be dependent on guidance currently being developed by the Department.

October 2010

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