United States Attorney’s Office
for the
District of Oregon
Criminal Discovery Policy
The discovery obligations of federal prosecutors are generally established
by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks
Act), Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S.
150 (1972). In addition, the United States Attorney's Manual describes
Department of Justice (DOJ) policy for disclosure of exculpatory and
impeachment information. See USAM §9-5.001. In order to meet discovery
obligations in a given case, federal prosecutors must be familiar with these
authorities and with the judicial interpretations and local rules that discuss or
address the application of these authorities to particular facts. In addition, it is
important for prosecutors to consider thoroughly how to meet their discovery
obligations in each case. To that end, the United States Attorney’s Office for the
District of Oregon (USAO) has adopted this policy for prosecutors regarding
criminal discovery.
This policy is intended to establish a methodical approach to consideration
of discovery obligations that prosecutors should follow in every case in which
charges have been filed. This 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 US. 741 (1979).
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.” 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 the
National Security Division (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; 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.
1. The Prosecution Team: Determining which agents and/or agencies are
part of the prosecution team enables AUSAs to fulfill their obligation to locate and
disclose discoverable information. The prosecution team includes all federal,
state, tribal and local law enforcement agents and officials participating in the
investigation and prosecution of the criminal case against the defendant. The
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 prosecution team will generally include any state, tribal or federal agent or agency
that participates materially in the federal criminal investigation, or whose actions
are supervised or controlled by the AUSA. Documents generated by an agent or
agency that are in AUSA files are subject to review and production. In
determining whether an agent or agency is part of the prosecution team AUSA’s
will take an expansive view while generally considering:
a.

Whether federal, state, tribal or local agents are working on
behalf of any AUSA or are under an AUSA’s control.

b.

The extent to which federal, state, tribal and local agencies,
civil and/or criminal, are part of a team, are part of a joint or
parallel investigation, or are sharing resources and/or
information.

c.

Whether and to what extent an AUSA has direct access to the
evidence.

2. What Must Be Reviewed for Disclosure: In order to satisfy the
USAO’s discovery obligations, AUSAs will gather and review all case-related
reports and evidence collected or generated by agencies that are part of the
prosecution team, and copy and/or provide all items appropriate for discovery to
the defense. Materials subject to review include but are not limited to:
a.

Investigative agency files.

b.

Confidential informant, witness, human source files: AUSAs
will request access to complete CI source files (not just files
related to the case at issue) and personally review the files for
relevant, discoverable information. AUSAs will review all
proffers, immunity agreements or other benefits extended to the
CI/source. If such materials give rise to privacy or security
concerns, AUSAs will consider disclosing the information via a
summary letter to defense counsel rather than providing such
records in their entirety.

c.

Evidence and information gathered during the investigation.
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 d.

Documents or evidence gathered in parallel civil investigations
by civil attorneys and/or regulatory agency staff who are part of
the prosecution team.

e.

Substantive case-related communications, including emails and
voice mail which may contain 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. Generally, communications involving case
impression or investigative/prosecution strategies, without
more, will be protected by the work-product privilege and not
subject to discovery.

f.

Potential Giglio impeachment information relating to law
enforcement witnesses and non-law enforcement witnesses.
i.

Non-Law Enforcement Witnesses: AUSAs will gather
and review potential Giglio information regarding lay
witnesses, including criminal history reports. If the
Portland Police Bureau (PPB) is part of the prosecution
team, review should include all reports of PPB law
enforcement contacts with such witnesses. AUSAs will
gather and review evidence of benefits or consideration
provided to a witness - including payments, other
assistance, dropped charges, immunity, immigration
benefits, downward departures or motions for reduction
of sentence.

ii.

Henthorn Material: If an AUSA determines that
discovery from the personnel file of a member of the
prosecution team is sought or will be needed for a federal
proceeding, the AUSA will make a prompt discovery
request to the agency involved pursuant to the
Brady/Giglio Policy of the USAO. Questions or issues
should be directed to the District Henthorn Coordinator.

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 g.

Information obtained in witness interviews including ongoing
duty to disclose variations in statements and new or
inconsistent statements.

h.

Agents’ notes and/or AUSA notes upon allegation or reason to
believe a discrepancy exists in interview reports.

i.

Potential Giglio impeachment information contained in PreSentence Reports (PSRs) of convicted defendants who may
testify, where such information is known by, or the PSR is in
the custody or control of, the prosecution team.

3. What Must Be Disclosed: AUSAs generally will provide broader and
more comprehensive discovery than is legally required except where
countervailing considerations discussed in this policy apply, including the need to
protect the identity of informants, and to ensure the safety of witnesses. To that
end, AUSAs may notify the defense that the government is electing to provide
discovery beyond that which is legally required but should never describe the
government’s discovery as “open file” or make similar representations. Use of
such a term is imprecise, and could lead to an accusation of misrepresentation
about the scope of discovery provided where there is an inadvertent failure to
disclose, or disagreement about the meaning of the term “open” and/or “file.”
Upon review of prosecution team materials, AUSAs will disclose all
discoverable information, including the following general categories, except
where countervailing considerations discussed in this policy apply, including the
need to protect the identity of informants, and to ensure the safety of witnesses.
Any decision to depart from the disclosure requirements of this policy
requires supervisory approval.
a.

Rule 16 evidence and information.

b.

Potential exculpatory information under Brady.

c.

Potential impeachment information under Giglio.

d.

Witness statements under FRCP 26.2 and the Jencks Act.
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 4. Timing of Disclosure:
a.

Except as provided in section 4(b) AUSAs will provide
discovery, including witness statements and interview reports,
promptly after first appearance and the appointment of counsel
consistent with this policy and pursuant to relevant statutes,
rules and/or court order. Exculpatory information, regardless
of whether the information is memorialized, must be disclosed
to the defendant reasonably promptly after it is discovered.
Impeachment information developed subsequent to initial
discovery, and which depends on the prosecutor's decision on
who is or may be called as a government witness, will be
disclosed at a reasonable time before trial to allow the trial to
proceed efficiently. See USAM § 9-5.001. AUSAs will
provide ongoing discovery in a timely manner as required by
law and policy.

b.

Drug and Violent Crime Cases: Such cases frequently involve
witness and victim security issues, privacy concerns, and
ongoing investigations. In such cases disclosure of interview
reports, witness statements and impeachment information may
be delayed to just prior to trial.

5. Non-Disclosure, Redaction and Protective Orders: Questions or
concerns regarding the decision to redact or withhold will be directed to a
supervisor. AUSAs will redact and/or withhold materials not subject to discovery
based on the following considerations:
a.

Whether disclosure could affect the integrity of any ongoing
investigation, witness security, and/or national security, or
implicates any of the countervailing considerations discussed
in this policy.

b.

Work Product: AUSAs will not waive or depart from the
non-disclosure provisions of Rule 16(a)(2) relating to attorney
work product, including case impressions and investigative or
prosecution strategies. If work product contains information
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 otherwise subject to disclosure under Rule 16, Jencks, or
Brady/Giglio, then the attorney work product portion will be
redacted prior to disclosure.
c.

Personal Identifying Information (PII): PII will be redacted, or
the AUSA will seek a protective order to limit its use and
dissemination.

d.

Protective Orders: Where redaction is not practical, or where
otherwise appropriate, AUSAs will seek a protective order
limiting use and disclosure of PII or other sensitive
information.

e.

Emails and Voice Mails: Discoverable information contained
in an email, text message or voice mail that is not otherwise
documented in a report may be disclosed in a redacted or
alternative form (e.g., summary letter or memo) in appropriate
circumstances. Redaction will be considered if an email,
text-message or voice mail contains a mix of substantive,
potentially privileged, and/or other non-discoverable
information.

6. Special Issues:
a.

Format of Information: With few exceptions, the format of
information does not determine whether it is subject to
discovery. E-mails, text messages, voice mails or other
electronic communications that contain substantive case
information that is discoverable will be preserved in a manner
that associates them with the case or investigation so that
discovery obligations may be met. USAO personnel and agents
will refrain from using email, text messages and voice mail to
communicate substantive case information in criminal and
parallel criminal/civil cases. AUSAs will advise investigative
agents that, unless circumstances dictate otherwise, substantive
written communications from agents about cases will be in the
form of a formal investigative report, and not in the form of
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 email, text message or voice mail.
b.

Agent and AUSA Notes:
i.

Witness interviews: Agent and AUSA rough notes made
during witness interviews are generally not discoverable
where the substance of the information has been
reproduced in a written report. Agent rough notes will
be preserved so any issue of material discrepancy in any
report can be addressed. If an AUSA has reason to
believe that there is a discrepancy between agent or
AUSA notes, on the one hand, and an official report on
the other, the AUSA will review the notes and disclose
to defense counsel any material discrepancies.

ii.

Witness preparation: There is generally no requirement
to create reports of trial preparation meetings with
witnesses. However, during such meetings with
witnesses AUSAs should be alert for new or inconsistent
information disclosed by the witness. New information
that is exculpatory or impeachment information will be
disclosed. Similarly, statements which are materially
inconsistent with a prior statement(s) will be disclosed.

c.

Witness Contacts: AUSAs will not communicate with a witness
on case-related matters, in person or by phone, without an
agent or other neutral witness present. AUSAs will ensure that
an agent or neutral witness is the primary note-taker.

d.

Victim-Witness Personnel: AUSAs and other USAO personnel
who interact with victims and witnesses will limit email and
other electronic communication exchanges to non-substantive
matters such as the scheduling of interviews or notification of
dates and times of hearings. Similarly, AUSAs will direct
agents to limit email and other electronic communication
exchanges with victims or witnesses to non-substantive
matters. Any substantive case information received from a
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 victim or witness, regardless of form, will be considered
potential Jencks Act material and maintained for Brady/Giglio
review. If USAO personnel other than the AUSA receives an
email, text message or voice mail containing substantive case
information from a victim or witness, the communication will
be forwarded to the AUSA(s) assigned to the investigation or
case and treated in a manner consistent with this policy.
e.

Continuing Obligation: AUSAs have a continuing obligation to
update discovery with any relevant, new material discovered or
generated by the prosecution team. This obligation includes
the duty to produce and disclose any material changes in a
witness statement or testimony.

7. Documentation: AUSAs will ensure that a complete and accurate record
of discovery is maintained. This office has adopted a comprehensive method for
producing and documenting discovery in a criminal case. Discovery consisting of
reports and documentary evidence will generally be provided in electronic form
and Bates stamped and logged using standard office protocols. Electronic data will
be converted from native format to PDF format or otherwise processed to protect
the integrity of the data. AUSAs will not transmit or disclose to the defense any
electronic data by email or otherwise which has not been processed to protect the
integrity of the data (See Discovery Guidelines dated 7/2/08 - S:\Criminal Forms).
Questions regarding discovery document format should be directed to Automated
Litigation Support (ALS) staff.
Discovery not suitable for conversion to electronic form will be made
available for inspection and photocopying. A large volume of documentary
evidence may be provided via inspection and photocopying on a case-by-case
basis where electronic discovery is impractical or the cost of conversion to
electronic form outweighs the benefit and convenience of electronic discovery.
AUSAs will ensure that in every case:
a.

Support personnel transfer, Bates stamp, and copy all discovery
materials onto electronic media.

b.

Redaction is accomplished where appropriate. See, Section 5.
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 c.

Discovery is transmitted to defense counsel with a transmittal
letter documenting the contents of the discovery and the date of
dissemination.

d.

All discovery is accurately reproduced, numbered and logged
and that a discovery log is kept in every case.

e.

Where discovery is made available for inspection and
photocopying, a log of such activity is kept.

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