Memorandum

Subject

Discovery best practices

Date

October 15, 2010

To

All Criminal AUSAs

From

Zane David Memeger
United States Attorney

Our office has historically practiced what some lawyers refer to as “open-file”
discovery and for good reason. Using this method, in most cases, discovery is mostly a
straightforward and, although time consuming, relatively easy part of the prosecution;
AUSAs simply compile all of the evidence obtained during the investigation and make it
available to defense counsel. Nonetheless, there are some complicated issues that we
confront in many cases. If such issues arise or you have any questions or concerns, please
discuss them with a supervisor.
This memorandum is designed to give guidance to AUSAs on how to conduct
discovery in criminal cases. This is a confidential document for the use of personnel in this
office only, and is not intended to create any additional rights for criminal defendants or for
any other person. It is not intended to answer every question that comes up in discovery.
The purpose is to help to conduct discovery properly and efficiently.
Following is the preferred process for conducting discovery. This is the same
way our office has always done it. Although this is preferred process, we must be flexible
and creative in dealing with discovery issues. There are three basic sources of discovery law:
Federal Rule of Criminal Procedure 16, the Jencks Act, codified at 18 U.S.C. § 3500 and
Rule 26.2, and information covered by Brady v. Maryland, 363 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972). Department of Justice policy, as set forth in the United
States Attorney’s Manual, provides that we produce discovery more broadly than legally
required.
Prosecutors should never describe the discovery being provided as “open file.”
Even if the prosecutor intends to provide expansive discovery, it is always possible that
something will be inadvertently omitted from production and the prosecutor will then have
unintentionally misrepresented the scope of materials provided. Furthermore, because the
concept of the “file” is imprecise, such a representation exposes the prosecutor 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.”

 Discovery Best Practices
October 15, 2010
Page 2

Although the practices discussed in this memorandum will be appropriate in
virtually every case our office brings, cases involving national security, classified
information, or other similar information raise other issues. While discovery is best
accomplished with broad and early disclosure, there are times when national security
cases may require disclosing only what the law requires when the law requires it. These
matters require a careful analysis of the national security concerns. At all times, we must
carry out our duty to protect national security and assure criminal defendants receive all
the discovery to which they are entitled. AUSAs must consult with Deputy Criminal
Chief Tay Aspinwall regarding discovery when assigned to such cases.
1.
Initial discovery: Shortly after a case is charged by indictment or
information, the assigned AUSA should send out a discovery letter advising defense
counsel that certain discovery is available for inspection and copying. It goes without
saying that this and all subsequent discovery letters should be in the case file and at your
fingertips for trial and other hearings. This initial discovery should include Rule 16
material, such as the defendant’s statements and the defendant’s criminal record. See
Federal Rule of Criminal Procedure 16(a)(1)(A). You should inform defense counsel
how the material will be available, e.g., upon request, you will produce paper copies,
electronic copies, or that the material will be made available for inspection and copying
by defense counsel. With the exception of a defendant’s statements and criminal record,
defense counsel are required to pay for discovery material. We should provide discovery
electronically in as many cases as possible.
2.
Jencks Act material and investigative reports: The Jencks Act and
Rule 26.2 require that statements of witnesses be produced only after their direct
testimony. The Act only requires production of substantially verbatim transcripts or
adopted statements, such as signed statements, signed confessions, grand jury testimony,
court testimony, and depositions. See 18 U.S.C. § 3500(e). Strictly speaking, this does
not include reports agents prepare summarizing interviews of witness such as FBI 302s or
DEA 6s. See United States v. Starusko, 729 F.2d 256, 263 (3d Cir. 1984). Such reports
must be produced, however, if the witness has read them before testifying. Nonetheless,
this office has traditionally produced these types of reports when the Jencks material is
produced. Although the Act does not require pretrial production of these materials, they
should be made available before trial. This serves three purposes: it prevents last-minute
and disruptive continuances to give defense counsel an opportunity to review this
material, it facilitates defendants pleading guilty, knowing the evidence against them, and
it maintains our credibility with the court.

 Discovery Best Practices
October 15, 2010
Page 3

In most cases, agents interview and produce reports for us and we grand
jury many more witnesses than we will call at trial. Even though these reports and
transcripts relate to witnesses we will not call at trial, they may have information relevant
to the investigation. In addition, a witness may have information that is helpful to the
defense that should be disclosed as part of our Brady obligation. We should generally
produce these reports and transcripts to defense counsel at the time we turn over the
Jencks material. If there is a reason why you believe such material should not be
produced or you have some question about this, see a supervisor. There may be good
reason not to produce this material such as privacy, national security, or safety concerns.
Also, agents increasingly communicate with victims and witnesses using email, text messages, and other electronic methods. Agents should keep copies of these
electronic communications in their case file if they contain substantive information and
produce them to us.
3.
Brady and Giglio material: Brady requires prosecutors to produce all
materially exculpatory information to defense counsel. Giglio material is information
that can be used to impeach our witnesses, such as prior inconsistent statements, prior
convictions or acts of dishonesty, plea or immunity agreements, non-subject letters, and
the substance of other government promises. This includes bad acts reflecting on the
credibility of law enforcement witnesses. Please follow the procedure outlined here if
there is a request from defense counsel for such information. If such information exists, it
should be produced at a reasonable time before trial to allow the trial to proceed efficiently.
Considerations of such as witness security and national security may counsel later disclosure.
Such matters should be discussed with a supervisor. United States Attorney’s Manual
§ 9-5.001 provides additional guidance regarding what Department of Justice policy says
we must disclose.
We should take a broad view of exculpatory material. Many times we do
not know the full nature of the defendant’s defense and cannot foresee exactly what will
be relevant to it. Hence, producing all such material, even if its materiality is dubious, is
advisable. The USAM § 9-5.001 says the following regarding affirmatively exculpatory
evidence:
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

 Discovery Best Practices
October 15, 2010
Page 4

believes such information will make the difference between conviction and
acquittal of the defendant for a charged crime.
As to impeaching evidence, the USAM, § 9.5001 provides:
A prosecutor must disclose information that either casts a substantial doubt
upon the accuracy of any evidence – including but not limited to witness
testimony – 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. This information must be disclosed regardless of
whether it is likely to make the difference between conviction and acquittal
of the defendant for a charged crime.
Finally, the USAM § 9.5001 makes clear that we are not to restrict our disclosures to
evidence that we believe is admissible:
:
Unlike the requirements of Brady and its progeny, which focus on evidence, the
disclosure requirement of this section applies to information regardless of whether the
information subject to disclosure would itself constitute admissible evidence.
4.
Agent rough notes: Increasingly, defense counsel successfully
request agents’ rough notes taken during interviews. We are responsible for producing
Brady and Giglio material even if it is contained in agents’ rough notes – or even in our
own notes. Rough notes are Brady material when they contain information that is
exculpatory and material that is not contained in the final report. Rough notes are Giglio
material if there are important inconsistencies between the notes and final report, or
between the notes and the witness’ testimony. Thus, for key witnesses as well as notes of
a defendant’s interview, agents’ rough notes should be reviewed by the AUSA or by the
recording agent for such material. See here for questions on issues related to rough notes.
Agents must be cognizant of exculpatory or impeaching material provided
by witnesses during interviews and it must be included in the report. For example, when
a witness lies in an interview but later comes clean in the same interview, we must make
sure that this fact is disclosed in the report. If it is not disclosed in the report, we still
have an obligation to inform defense counsel of the inconsistency.
5.
Disclosures by witnesses during trial preparation: When AUSAs
prepare witnesses for grand jury testimony, trial, or other hearing, witnesses may make
disclosures that are either inconsistent with what they told agents or they tell us about

 Discovery Best Practices
October 15, 2010
Page 5

some otherwise unknown criminal activity or impeachment material. Such material must
be disclosed to defense counsel in a timely fashion either one of two ways: the case agent
must prepare a report summarizing the new information or the AUSA must write a letter
to defense counsel doing the same. United States Attorney’s Manual § 9-5.001 provides
additional guidance.
6.
Documents and other information obtained during pretrial period:
Usually, we issue trial subpoenas for documents or obtain other documents pretrial.
Additionally, our expert reports, such as interstate nexus experts in gun cases, fingerprint
analysis, drug experts in drug cases, etc., are discoverable under Rule 16(a)(1)(G). These
materials should be produced to defense counsel as they are received.
7.
Defense disclosures: We are entitled to discovery from defense
counsel and must demand it in writing, or on the record if done in court. Our form
discovery letter contains such a demand. Usually, judges are sympathetic to our requests
that the defendant produce discovery and will order defense counsel to produce it.
8.
Keeping a record: It is critical to maintain a record of what is
produced to defense counsel. It does no good to produce material if we cannot prove we
have done so. There are a number of ways to do this. The discovery letter can contain an
index of what you are producing. If you do this, include a sentence requesting counsel to
call you if any material is missing. You may create a second discovery disc, if you are
producing the material electronically. That disc should be kept with the file. You could
also make a second paper copy of what you have disclosed. It is also advisable to
consider bates stamping all copies of discovery. If the material is too voluminous to
produce in any of these manners and the AUSA is making the material available for
inspection, the case agent should compile an inventory of the materials made available to
defense counsel.
9.
Agent and officer personnel files: DOJ policy requires that federal
agents must inform the prosecutor of any “potential impeachment information prior to
providing a sworn statement or testimony in any investigation or case.” United States
Attorney’s Manual § 9-5.100. If an agent makes such a disclosure to an AUSA, that
AUSA must consult a supervisor before using that agent in any matter. From time to
time, defense attorneys request the personnel file of federal agents. Such requests must
be handled through Supervisory AUSA Rich Zack. Our office takes hundreds of cases
each year investigated by the Philadelphia Police Department and other local police
departments. In these cases, it is the AUSA’s responsibility to obtain a list of Internal

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October 15, 2010
Page 6

Affairs investigations for each police officer witness to determine whether there is
material that must be disclosed in discovery. See Supervisory AUSA Kathy Stark about
how to make such a request.
10.
Redactions and Protective Orders: We have an important duty to
protect the privacy of witnesses and victims of crimes. Accordingly, we must redact
personal identifiers of victims and witnesses, such as birth dates and social security
numbers, from documents we produce. Also, we are entitled to obtain protective orders
limiting the use of discovery material. We should make liberal use of such orders.
11.
issues arise.

Supervision: AUSAs should consult a supervisor any time discovery