Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010

A. Introduction:
On January 4, 2010, following a thorough review of the policies, practices and
training related to case management and discovery utilized across the Department of
Justice (DOJ), the Deputy Attorney General (DAG) directed each United States
Attorney’s Office (USAO) and each DOJ litigating component handling criminal matters
to establish uniform criminal discovery practices. Also on January 4, 2010, the DAG
issued “Guidance for Prosecutors Regarding Criminal Discovery” setting a baseline for
all component discovery policies. The following implements the DAG memorandums
and is the discovery policy for the United States Attorney’s Office in the Eastern District
of Kentucky.
Discovery is an important obligation of the United States. Each Assistant United
States Attorney (AUSA) has an independent duty to insure that discovery is properly
conducted and that certain information is timely produced. In almost every case,
paralegals and legal assistants have an important role in gathering, tracking and producing
discovery materials. Our support staff makes possible the prosecution of complex and
multi-defendant cases. It is the AUSA, however, who is responsible for timely and
complete discovery. AUSAs must supervise all phases of discovery and insure discovery
materials, Jencks Act materials, and Brady and Giglio information are timely produced.
In general terms, the discovery obligations of federal prosecutors are set forth in
Rules 16 and 26.2 of the Federal Rules of Criminal Procedure. Those rules are
augmented by statute in the form of the Jencks Act, 18 U.S.C. § 3500, et seq., and case
law, particularly, Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405
U.S. 150 (1972). In addition, DOJ promulgated guidance concerning disclosure of
exculpatory and impeachment materials at USAM § 9-5.001, and the production of Brady
and Giglio materials at USAM § 9-5.100. The practice in the Eastern District of
Kentucky (EDKY) has been to provide timely, complete discovery pursuant to the Rules,
case law, and district court discovery orders in a manner that facilitates the fair
administration of justice and does not compromise a defendant’s rights.

1

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
B. Discovery Practice:
There is a wide variety of cases prosecuted in EDKY. Cases range from the
factually simple (e.g. a felon in possession of a firearm) to the factually and legally
complex (e.g. a RICO prosecution). Many factors play into the consideration of when a
matter is charged. All too often, however, we overlook the impact of discovery when
deciding when a matter should be presented to the grand jury or charged by complaint. In
general, AUSAs should strive to have all discovery ready to be provided or made
available to defense counsel and all related issues addressed before a case is indicted. In
those situations when it is not possible or practical to have discovery prepared, AUSAs
should seek the guidance of their first line supervisor before moving a case forward to
presenting an indictment to the grand jury.
1. Discovery Orders:
Each District Court judge in EDKY issues a discovery order in every criminal
case. The orders issued by the judges in EDKY vary slightly. All such orders, however,
set forth a fairly short time frame by which the litigants must commence discovery. Most
of these orders require the litigants to consult with each other about discovery within 10
days of the defendant’s arraignment. All such orders require Rule 16 discovery be
produced upon request of the Defendant promptly, usually no less than 10 days following
the request. In EDKY we do not always require a written request from the defendant to
initiate discovery. Nevertheless, AUSAs should document verbal discovery requests from
defense counsel and discussions concerning discovery issues. AUSAs should also
document what discovery was provided, when it was provided, and if possible, its receipt.
Where there is no discovery request, the government’s Rule 16 obligations are not
triggered. Our obligations under Brady/Giglio and the Jencks Act are independent of
Rule 16
2. FRCP 16:
FRCP 16(a) established the basic discovery obligations of the United States.
Under the Rule, the government is required to disclose “prior statements of the defendant,
the defendant’s prior criminal record, documents, photographs, or tangible objects, which
are withing the custody or control of the government and which are material to the
defense or intended for use by the government in its case-in-chief at trial or which were
2

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
obtained from or belong to the defendant, and the results of any mental or physical
examinations performed on the defendant which are material to the defense or which are
intended for the use by the government as evidence in its case-in chief at trial.” United
States v. Presser, 844 F2d 1275, 1284-85 (6th Cir.1988). Rule 16 explicitly excludes
from disclosure witness statements and internal reports written by government agents or
attorneys in connection with the investigation or prosecution of the case.
3. Jencks Act Materials:
The Jencks Act, 18 U.S.C. § 3500, et seq. requires the government to make
“witness statements” available to the defense after the witness has testified on direct
examination. There is no requirement that Jencks Act materials be provided prior to trial.
Presser at 1283. In fact, a court cannot order the government to produce Jencks Act
materials until after the witness has testified. Presser at 1284. However, it is typically
the practice in EDKY to provide Jencks Act materials prior to trial to avoid disruptions
during trial. Caution, however, should be exercised in determining what and when
materials should be produced under the Jencks Act.
A question often arises as to whether a report of an interview of a testifying
witness should be produced under the Jencks Act. Reports of interviews do not
automatically qualify for production under the Jencks Act. A report of an interview, such
as an FBI 302 or a DEA 6, qualifies as Jencks Act materials only if it contains a
verbatim statement of the witness or it has been adopted by a witness. A witness
statement may include, but is not limited to, something written or signed by the witness;
recordings of the witness; substantially verbatim written recordings of the witness; and
grand jury transcripts. Note, however, that a report of an interview written by a testifying
agent must be produced under the Jencks Act if the agent testified about a matter
contained in the report.
There are circumstances in which an AUSA may wish to delay the production of
Jencks Act materials until immediately before a witness testifies or just after. Those
circumstances might include security issues for witnesses and victims; concerns about
reports of interviews circulating among prison populations; and other misuse of such
reports. In those circumstances, AUSAs should seek guidance from their first line
supervisors. There may be alternatives to withholding the documents, such as requesting
protective orders limiting the defendant’s access to the documents or providing access
3

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
only to defense counsel. Finally, there may, of course, be other grounds for producing a
report of an agent during discovery.

4. Brady/Giglio Issues:
Under Brady v. Maryland, 373 U.S. 83 (1963), the government is obligated to
provide any evidence that is material to guilt or punishment. Brady, 373 U.S. at 87;
Giglio v. United States, 405 U.S. 150 (1972), and its progeny, require the government to
turn over to the defendant anything known to the government which would adversely
impact the outcome of a trial in a material way. Giglio, 405 U.S. at 154. Brady and
Giglio information must be disclosed to the defense regardless of whether the defense
makes a request for such information. USAM § 9-5.001 “requires AUSAs to go beyond
the minimum obligations required by the Constitution and establishes broader standards
for disclosure of exculpatory and impeachment information.” This policy requires
disclosure of “information beyond that which is ‘material’ to guilt as articulated in Kyles
v. Whitley, 514 U.S. 419 (1995),” and encourages AUSAs to “err on the side of
disclosure.” This policy requires the prosecution team to produce “information,”
not just “evidence,” and counsels that the assigned AUSA(s) must consider the
cumulative impact of items of information. In EDKY, Brady and Giglio information
must be supplied to the defendant for “effective use at trial.” Presser at 1285. The
practice in EDKY is to provide such materials as soon as reasonably possible, but no later
than several days before trial commences. Additionally, such information should be
supplied to defense counsel in sufficient time for effective use at contested pre-trial
hearings, sentencing hearings, and post-conviction evidentiary hearings.
What constitutes the prosecution team is crucial in determining the extent to which
an AUSA must go to identify Brady/Giglio information and Jencks Act materials.
Generally, the prosecution team includes the federal, state, and local law enforcement
agents participating in the investigation. It may also include any other government
officials participating in the investigation or in a parallel proceeding. In determining who
may be part of the prosecution team for discovery purposes, AUSAs should consider
whether other districts or regulatory agencies participated or shared resources in the
investigation; whether another district or agency played an active role in the investigation;
and the level at which another district or agency played a decisional role in the
4

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
investigation. In short, AUSAs should take an expansive view of “prosecution team.”
When in doubt, an AUSA should consult with a first line supervisor.
Exculpatory information, not just documentation, must be timely disclosed.
AUSAs should go beyond the Constitutional requirements and take a broad view of
materiality when determining what must be disclosed. According to USAM § 9-5.001,
A prosecutor must disclose information that is inconsistent
with any element of any crime charged against the defendant
or that establishes a recognized affirmative defense,
regardless of whether the prosecutor believes such
information will make the difference between conviction and
acquittal of the defendant for a charged crime.
Exculpatory information may be contained in interview memoranda of testifying and nontestifying witnesses, memoranda, internal emails and texts, memos, and other documents.
Exculpatory information, however, need not be provided in its original form. Such
information may be provided in a letter to defense counsel, depending on the
circumstances of the case. In the alternative, documents may be redacted to provide only
the exculpatory information. For case specific guidance, AUSAs should consult their first
line supervisor.
Brady/Giglio information must also be produced in time for effective use at
hearings and trial. USAM § 9-5.001 requires an AUSA to disclose anything that is
material to the witness's credibility, or “that casts a substantial doubt upon the accuracy of
any evidence ... the prosecutor intends to rely on to prove an element of any crime
charged, or might have a significant bearing on the admissibility of prosecution
evidence.” USAM § 9-5.001. Materials provided pursuant to Brady/Giglio and/or USAM
§ 9-5.001 should be disclosed regardless of admissibility. The rule is not one of
admission, but rather one of disclosure. Such materials should be disclosed.
AUSAs have an obligation to determine whether Giglio information exists with
regard to testifying members of law enforcement. USAM § 9-5.100 sets forth DOJ’s
policy on obtaining and disclosing Giglio information relating to law enforcement
witnesses. In every case, AUSAs should discuss this obligation with the members of law
enforcement and explain the process by which the information is obtained. Of course,
5

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
law enforcement members may provide such information directly to the AUSA. The
AUSA, however, should request Giglio information in writing. A standard letter
requesting Giglio information is available on Criminal Forms on the District’s Sharepoint
site. Such requests take time, and AUSAs should make these requests sufficiently early in
the litigation to obtain timely responses. AUSAs should also seek protective orders when
Giglio information is disclosed to prevent the information from use outside of court or
dissemination to third persons. If a Giglio request has been made but not responded to
before trial begins, the AUSA should so advise the court.
5. Agent’s Notes:
In general, agent’s notes are not discoverable if the notes are faithfully represented
in the formal report. If the agent’s notes depart materially from what is contained in the
formal report, disclosure may be appropriate. Although there is no policy or law
requiring AUSAs to review agent’s notes, it is recommended that AUSAs do so.
Recently, whether AUSAs have reviewed agent’s notes has been the subject of litigation,
and AUSAs have been ordered to make such reviews. Any question of whether agent’s
notes are discoverable should be settled well before trial, and an AUSA review of those
notes in the course of identifying discovery should prevent such issues from arising
immediately before trial. In situations where the AUSA is unsure whether the notes
should be produced, the AUSA should consult with a first line supervisor.
Under FRCP 16(a)(1)(B)(ii), agents notes of a defendant interview may be subject
to production. Rule 16(a)(1)(B)(ii) requires, upon request, the disclosure of any written
record containing the substance of a defendant’s statement to the government. The Sixth
Circuit has found that failure to produce the agent’s notes of an interview of the
defendant violated Rule 16(a)(1)(B)(ii), even though a report containing substantially the
same substance of the defendant’s statement was produced pursuant to Rule 16(a)(1)(A).
United States v. Clark, 385 F.3d 609, 619 (6th Cir.2004).
6. Substantive Communications:
Substantive case-related communications may include communications with
agents, sources, confidential informants, local law enforcement and AUSAs. Specifically,
substantive communications include factual reports about investigative activity, factual
discussions of the relative merits of the evidence, factual information obtained during
6

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
interviews or interactions with witnesses/victim, and factual issues relating to credibility.
Case impressions or investigative/prosecution strategies without more are not ordinarily
discoverable, but such communications should be reviewed carefully to determine
whether all or part of the communication (or the information contained therein) should be
disclosed. Often, substantive communications are contained in electronically stored
information, known as ESI. ESI can include, but is not limited to, emails, voice mails,
tweets, instant messages, text messages, memoranda and notes. AUSAs should insure that
all substantive case-related communications are reviewed for discovery materials, Jencks
Act statements, and Brady and Giglio information.
7. National Security Cases
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 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:

7

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
-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.
8. Documentation:
In EDKY, we generally enjoy a professional working relationship with opposing
counsel. As our practice expands, however, we need to consistently document our
compliance with our discovery obligations. AUSAs should document efforts to comply
with discovery obligations. In addition, AUSAs should utilize receipts recording any and
all documents, statements, reports, or exhibits given to defense counsel and such receipts
should be signed by defense counsel or his/her agent.
Consideration should also be given to retaining an exact copy of the discovery
given to the defense for later reference.
9. Redacting Privacy Information:
8

 Eastern District of Kentucky
Discovery Policy
Revised 15 Oct 2010
All personal identifiers should be redacted in whole or in part from discovery,
including, but not limited to, names of minors, dates of birth, social security numbers,
taxpayer identification numbers, home street addresses, telephone numbers, Medicare or
Medicaid ID numbers, financial account numbers, and any other identifier which may
improperly disclose private or sensitive information. FRCP 49.1, which contains
direction for redacting documents filed with the court, should also be used as a starting
point for the redaction of documents that will be produced in discovery.
C. Conclusion:
This policy is not intended to cover every situation arising in the discovery context,
but rather sets forth general guidelines. AUSAs should consult with their first line
supervisors for guidance concerning discovery issues arising in particular cases. In
addition, this policy is not intended to have the force of law or to create or confer any
rights, privileges, or benefits to defendants. Finally, this discovery 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 DOJ.

9