Memorandum
Subject

Date

Discovery Policy for Eastern
District of Washington

October 14, 2010

To

From

All Staff
United States Attorney Office

James A. McDevitt
United States Attorney

I.
INTRODUCTION
On January 4, 2010, Deputy Attorney General Ogden issued a memorandum entitled
“Guidance for Prosecutors Regarding Criminal Discovery” (“DAG Ogden Criminal
Discovery Guidance.” That same date, he issued a memorandum directing that
USAOs promulgate discovery policies governing several enumerated issues. This
comprehensive discovery policy implements the directives of the Deputy Attorney
General.
This memorandum sets forth the discovery policy for the Eastern District of
Washington subject to legal precedent, court orders, and local rules. It provides a
prospective policy only and is not intended to have the force of law or to create or
confer any rights, privileges, or benefits to any defendant. See United States v.
Caceres, 440 U.S. 741 (1979).
This memorandum is intended to provide guidance with respect to discovery
obligations in the Eastern District of Washington as those obligations relate to the
gathering, tracking, reviewing and producing of discoverable information in criminal
cases. All such obligations are, at a minimum, intended to comport with statutory and
procedural rules, case law, the Constitution, Department of Justice policies, and local
court rules. These obligations are defined by:
(1) Rules 16 and 12 of the Federal Rules of Criminal Procedure;
(2) Rule 26.2 of the Federal Rules of Criminal Procedure and the Jencks Act,
18 U.S.C. 3500, et seq.;
(3) Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405
U.S. 150 (1972), and their progeny;
(4) USAM 9-5.001 (Disclosure of Exculpatory and Impeachment
Information) and 9-5.100 (Potential Impeachment Information on Law
Enforcement Witnesses); and
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 (5) Local rules and standing orders of the district and magistrate courts.
In some respects, the guidance contained in this memorandum may suggest broader
disclosure than the law mandates. Generally, AUSAs1 should provide broad, early
discovery of information and materials to the extent that such discovery disclosure
promotes the just resolution of a case while not jeopardizing witness safety, national
security, or any ongoing criminal investigation.
II.
GENERAL OVERVIEW
In the vast majority of criminal cases, early and broad discovery avoids wasteful
litigation on discovery disputes; equips defense counsel with the ability to provide
informed advice to clients about their options, promotes meaningful negotiations for
disposition and resolution of cases; induces timely plea agreements (thereby avoiding
the expenditure of limited prosecutorial resources), encourages timely and beneficial
cooperation from a defendant in some instances; and projects the appearance to the
judges and the defense bar that the office is fair, reasonable, and committed to
resolving cases based on the facts rather than on tactical maneuvers.
Although the default position in the Eastern District of Washington favors early and
broad disclosure of all material information through the discovery process,2 there will
always be some cases in which discovery disclosure must be very selective or
delayed. For example,3 discovery disclosure must be selective when there are
credible security, intimidation, retaliation, or vulnerability concerns and may be
delayed when there is a need to protect the integrity of an active spin-off investigation
or to prevent a defendant who wants to cooperate by way of a “free talk” from

As used in this memorandum, “AUSA” includes Special Assistant United
States Attorneys and DOJ attorneys working on a case in the EDWA.
1

AUSAs should be mindful that the discovery process includes a continuing
obligation to disclose discovery material during the pre-trial and trial phase of a
case, as well as during any post-trial / post-conviction proceeding. AUSA’s
should also be aware of local bar rules regarding post-trial discovery obligations
pertaining to newly discovered evidence.
2

These examples are not meant to be all-inclusive, but instead are illustrative
of the type of case-specific reasons that would justify limitations on the scope or
on the timing of the disclosure of information.
2
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 tailoring his or her comments to the information that the Government already
possesses. Moreover, unless specific identifying information is directly material to
the criminal case, AUSAs should withhold or redact personal identification
information about victims, minors, confidential informants, and civilian witnesses as
envisioned by Fed. R. Crim. P., Rule 49.1, such as, specific information about, for
example, dates of birth, places of birth, social security numbers, home telephone
numbers, driver’s license numbers, minors’ and victims’ names, and bank account
numbers.
III. DISCOVERY GUIDANCE
The following is intended to provide guidance to AUSAs with respect to discovery
obligations in the Eastern District of Washington. In conjunction with this guidance
AUSAs must also be mindful of:
Personal Review of Discovery Material. AUSAs are expected to personally review
discovery material, rather than relying solely on case agents or support staff, to ensure
compliance with the discovery policy in this District.4 Such review may include case
agent rough notes relating to important and/or significant witnesses involved in the
underlying investigation, as well as confidential informant files. AUSAs may,
however, rely on any agency’s review of a law enforcement agent’s/officer’s
personnel file as that review relates to Giglio and Henthorn material.5

AUSAs should be mindful that such review not only includes discovery
material generated by Federal agents acting on the government’s behalf, but also
state, local, and tribal law personnel involved in the investigation or prosecution
of the federal criminal case.
4

If defense counsel makes a specific request for an agent’s/officer’s
personnel files, or the court orders the United States to review such files (or if an
AUSA request such files reviewed), a request is submitted to the Senior Litigation
Counsel (SLC) and, in some circumstances the Criminal Chief. The SLC and/or
the Criminal Chief are the only authorized persons to request personnel file
information and to advise the AUSA about any potential impeachment
information contained therein. This District has a standing Giglio Implementation
Plan.
3
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 Creating a Record of Discovery Material. AUSAs must maintain a written record of
material that has been provided to the defense, normally by numbering the discovery
material with a Bates stamp and keeping a copy of that numbered discovery, or by
generating an itemized letter or other log of the contents of the discovery.
Redaction of Personal Information. Unless specific identifying information is
directly material to the criminal case, AUSAs should take reasonable steps to protect
the confidentiality of personal identification information of witnesses, victims, and
informants by redacting from the defense copy of discovery material personal
identification information about victims, minors, confidential informants, and civilian
witnesses as envisioned by Fed. R. Crim. P., Rule 49.1, such as specific information
about, for example, dates of birth, places of birth, social security numbers, home
telephone numbers, driver’s license numbers, minors’ and victims’ names, and bank
account numbers.6
Minors. AUSAs should be mindful that special precautions must be taken with
respect to discovery disclosure obligations concerning minors and particularly minor
witnesses and/or victims.7 Disclosure of information relating to a minor may be made
only to individuals who need access to the information because of their participation
in a proceedings and any documents containing such information must be maintained
in a manner that restricts access to only those individuals. See 18 U.S.C. §
3509(d)(1).8 AUSAs should be mindful that pleadings (or other material containing

AUSAs should be mindful of the provisions of the Crime Victims Rights
Act, 18 U.S.C. § 3771, and the rights and obligations provided thereunder.
6

In the context of child pornography and other child exploitation cases, and
in light of the sensitivity of the information and the legal limitations on disclosure,
AUSAs must be mindful to exercise due caution in the manner and means by
which discoverable material is disclosed and ensure any re-dissemination of such
material is appropriately restricted. See e.g. 18 U.S.C. § 3509(m).
7

When discovery obligations require disclosure of information concerning
minor witnesses, AUSAs should seek a protective order to ensure proper handling
of the information by all parties. See 18 U.S.C. §§ 3509(d)(3)(A) and
3509(d)(3)(B)(ii).
8

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 such information) that are filed with the court should be done so under seal, without
the necessity for a Court Order. See 18 U.S.C. § 3509(d)(2).
Re-Dissemination of Discovery Material. AUSAs must condition early production of
discovery upon a written commitment by defense counsel that all of the discovery, or
some designated portion of the discovery, will not be left in the possession of the
defendant and will not be copied or otherwise re-disseminated beyond defense
counsel. This may be accomplished by way of a letter or, in certain circumstances,
Court Order.
The Use of the Term “Open File.” Notwithstanding the fact that in the vast majority
of criminal cases AUSAs will provide early and broad discovery, AUSAs should not
represent to defense counsel or to the Court that the AUSA has taken an “open file”
approach to the case or has provided to the defense everything in the Government’s
possession. Not only can such a statement be easily misinterpreted (particularly with
respect to work product), but invariably a case agent or the AUSA will have some
documents of no or limited relevance that have not been produced.
Informal Resolution of Discovery Disputes. AUSAs should attempt to resolve
discovery disputes informally in order to avoid the unnecessary expenditure of
prosecution and judicial resources associated with litigating discovery issues.
AUSAs are encouraged to resolve disputes by obtaining stipulations from defense
counsel on the reciprocal production of defense discovery or on restrictions on the
dissemination of the substance of the information by defense counsel.
Cases Involving National Security and/ or Classified Information. AUSAs must be
aware and are expected to know that 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." AUSAs 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 AUSA, after
conferring with other members of the prosecution team, has a specific reason to
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 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 AUSA,
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:
Ž Those targeting corrupt or fraudulent practices by middle or upper officials of
a foreign government;
Ž Those involving alleged violations of the Arms Export Control Act or the
International Emergency Economic Powers Act;
Ž Those involving trading with the enemy, international terrorism, or
significant international narcotics trafficking, especially if they involve foreign
government or military personnel;
Ž Other significant cases involving international suspects and targets; and
Ž 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 AUSA, 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 AUSA, 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.
A.
Federal Rules of Criminal Procedure
AUSAs will comply with the requirements of Rules 16 and 12 of the Federal Rules of
Criminal Procedure.

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 1.
Rule 16
AUSAs must be familiar with the mutual disclosure obligations of the United States
and the defense under Rule 16. These obligations, which are triggered upon request
and are continuing in nature up to and though trial, include disclosure by the United
States of: defendant’s oral statements (16(a)(1)(A)); defendant’s written or recorded
statements (16(a)(1)(B)); defendant’s prior criminal record (Rule 16(a)(1)(D));
documents and objects (Rule 16(a)(1)(E)); reports of examinations and tests (Rule
16(a)(1)(F)); Expert Witness summary (Rule 16(a)(1)(G)); and Grand Jury testimony
as applicable (Rule 16(a)(3))
AUSAs must also be familiar with the process by which discovery disclosure may be
regulated, including protective and modifying court orders (Rule 16(d)(1)) and the
potential sanctions for failure to comply with Rule 16 disclosure obligations (Rule
16(d)(2)).
2.
Rule 12
AUSAs must be familiar with the mutual disclosure obligations of the United States
and the defense under Rule 12. These obligations, which are triggered upon request
and are continuing in nature up to and though trial, include: disclosure by the United
States (generally within 14 days) of the name of each witness upon whom the United
States intends to rely to counter a defendant’s alibi defense, including in appropriate
circumstances, the address and telephone number of any such witness (Rule 12.1 (b)).
AUSAs must be familiar with the procedural requirements under Rule 12.2
concerning notice of an insanity defense and Rule 12.3 concerning notice of a publicauthority defense.
AUSAs must also be familiar with the process by which discovery disclosure may be
regulated, including protective and modifying court orders (Rule 12.1(d)) and the
potential sanctions for failure to comply with Rule 12 disclosure obligations (Rule
12.1(e)).
B.

Witness Statements
(Jencks Act, 18 U.S.C. 3500, et seq. and Rule 26.2)
In the absence of a specific, legitimate reason to withhold discoverable information,9

A legitimate reason for withholding all information in this category, or
specific items of information in this category, should be determined in light of the
9

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 an AUSA should disclose investigative reports, memoranda of interviews, summaries
or analysis of financial records or telephone activity, and statements within the
meaning of the Jencks Act, 18 U.S.C. § 3500 and the strictures of Rule 26.2 at the
earliest available time following arraignment. However, AUSAs have discretion to
determine how far in advance of a witness’s testimony investigative and interview
reports will be disclosed based upon the particular circumstances of a case and any
reciprocal discovery agreement(s) reached with defense counsel. Production of
witness interview reports is required regardless of whether the reports qualify as
statements as defined by the Jencks Act, contains Brady or Giglio information, or is
discoverable under any other law, rule, or policy. The EDWA discovery policy
envisions earlier and broader production than is required by the Jencks Act.10
1.
Jencks Act
Although The EDWA discovery policy envisions broad and early production of
reports of witness interviews, AUSAs should nonetheless be familiar with the law’s
requirements and be prepared to object, if necessary, to the improper use or treatment
of such reports as "witness statements" to the extent that they do not qualify as
statements under the Jencks Act.
The Jencks Act defines “witness statements” as “(1) a written statement made by [a]
witness and signed or otherwise adopted or approved by him; (2) a stenographic,
mechanical, electrical, or other recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made by [the] witness and recorded
contemporaneously with the making of such oral statement; or (3) a statement,
however taken or recorded, or a transcription thereof, if any, made by [a] witness to a
grand jury.” 18 U.S.C. § 3500 (e). AUSAs should understand that reports of witness
interviews such as DEA-6's, FBI 302's, etc, may not be substantially verbatim and
may not have not been reviewed and adopted by the witness and therefore may not
technically be Jencks Act material and, therefore, not required by law to be produced
circumstances of the particular case as identified earlier by way of non-inclusive
examples.
The Jencks Act and Federal Rule of Criminal Procedure 26.2 do not require
disclosure of witness statements until after the witness has testified on direct
examination in a hearing or trial.
10

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 as such.11 However, AUSAs should be mindful that it has been, and will continue to
be, the custom and practice in the EDWA to routinely disclose such reports
nonetheless.
2.
Fed. R. Crim. P., Rule 26.2
AUSA’s must be familiar with Rule 26.2 of the Federal Rules of Criminal Procedure.
Rule 26.2 is similar to the Jencks Act except it applies to the United States and the
defendant (Jencks Act inapplicable to defendant). The Rule defines the term
“statement” similarly and requires the disclosure of witness statements that relate to
the subject matter of a witness’s testimony. The Rule provides for in camera
inspection if either party claims privilege or information that does not relate to the
subject matter of the testimony. AUSAs must be familiar with the potential sanctions
for failure to comply with the Rule (Rule 26.2(e)).
Again, AUSAs should be mindful that it has been the custom and practice in the
EDWA to routinely disclose reports such as DEA-6's, FBI 302, etc. even if such
reports contain information that does not technically meet the definition of a
“statement” under the Rule.
C.
Exculpatory and Impeachment Information
AUSAs representing the U.S. Attorney’s Office for the Eastern District of
Washington will comply with the obligations pronounced by Department of Justice

AUSAs should be careful not to characterize a witness interview as a
Jencks Act statement in discovery letters or court pleadings if the interview does
not fit the Jencks Act definition of a witness statement. Because witness interview
reports are not Jencks material unless the witness has adopted the memorandum as
his statement, AUSAs should continue to object to use of such reports in cross
examination as if it were the witness’ statement.
Jencks Act material includes, for example, statements or reports in United
States’ possession that are: written statement made by witness and signed or
otherwise adopted or approved by him/her; a stenographic, mechanical, electrical,
or other recording, or a transcription thereof, which is a substantial verbatim
recital of an oral statement made by said witness and recorded contemporaneously
with the making of such oral statement; or a statement, however taken or recorded,
or a transcription thereof, if any, made by said witness to a grand jury.
11

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 policy and those set forth in the line of cases that require production of material
exculpatory information in sufficient time for the defense to make effective use of
that information, based on a defendant’s right to due process. See, e.g., Brady v.
Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); United
States v. Henthorn, 931 F.2d 29 (9th Cir. 1991).
1.
Summary overview of Brady and Giglio
AUSAs must be familiar with these cases and their progeny. In Brady the Supreme
Court announced:
We now hold that the suppression by the prosecution of evidence favorable to
an accused * * * violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.
Id. at 87. Nine years later, in Giglio, the Supreme Court held that Brady material
includes material that might be used to impeach key government witnesses, stating:
When the “reliability of a given witness may well be determinative of
guilt or innocence,” nondisclosure of evidence affecting [the witness’s]
credibility falls within th[e] general rule [of Brady].
Id. at 154. The Supreme Court has explained that Brady material and Giglio material
are not two distinct kinds of evidence under the Constitution, but rather, Giglio
material is merely one form of Brady material:
In Brady * * * , the prosecutor failed to disclose exculpatory evidence.
In the present case, the prosecutor failed to disclose evidence that the
defense might have used to impeach the Government’s witnesses by
showing bias or interest. See Giglio[]. Impeachment evidence, however,
as well as exculpatory evidence, falls within the Brady rule. Such
evidence is “evidence favorable to an accused,” so that, if disclosed and
used effectively, it may make the difference between conviction and
acquittal.
United States v. Bagley, 473 U.S. 667, 676 (1985).
Nevertheless, it is often useful to keep Brady and Giglio analytically distinct: the term
“Brady material” refers to evidence or information — other than Giglio material —
that could be used by a defendant to make his conviction less likely or a lower
sentence more likely, and the term “Giglio material” refers to evidence or information
that could be used by a defendant to impeach a key government witness.
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 2.
DOJ Policy
AUSAs must be mindful that the Department of Justice’s policy on the disclosure
of exculpatory and impeaching information and evidence is broader than what is
constitutionally required. While ordinarily evidence that would not be
admissible at trial need not be disclosed, this policy encourages prosecutors to
err on the side of disclosure if admissibility is a close question. See USAM
9-5.001 (Disclosure of Exculpatory and Impeachment Information) and 9-5.100
(Potential Impeachment Information on Law Enforcement Witnesses).
An AUSA must also be mindful that, although there is no specific time by which the
United States must disclose Brady and Giglio material to the defendant, due process
requires that such disclosure of exculpatory and impeachment material be made in
sufficient time to permit the defendant to make effective use of that material at trial.
Department of Justice policy as set forth under USAM 9-5.001 directs disclosure of
exculpatory information “reasonably promptly after it is discovered,” and that
the disclosure of impeachment information be made before trial.
3.
The “Prosecution Team” concept
AUSAs must be aware that, in some instances, Brady or Giglio material may exist
that an agent knows about but the AUSA does not. In 1995, the U.S. Supreme Court
made clear that a defendant is entitled to the disclosure of all Brady and Giglio
material known to any member of the prosecution team. See Kyles v. Whitley, 514
U.S. 419, 437-38 (1995). Thus, if any member of the prosecution team knows of any
Brady or Giglio material, the AUSA will be held legally responsible for disclosing
that evidence to the defendant, whether or not he/she actually knows about the
evidence.12
The prosecution team includes all “others acting on the government’s behalf in the
case.” Kyles, 514 U.S. at 437. At a minimum, this includes all federal, state, and
local law enforcement personnel directly involved in the investigation or prosecution
of the federal criminal case. The primary responsibility for getting Brady material to
the AUSA lies with the case agent, which in turn means that the case agent must
An AUSA’s ignorance of such evidence will not prevent a court from
penalizing the government by suppressing evidence, vacating a sentence, reversing
a conviction, or recommending that the AUSA be professionally sanctioned.
12

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 make sure that every member of the prosecution team knows the Brady rule and
obligations.13
4.
AUSAs’ responsibility under Brady and Giglio
Ultimately, in any given case, it is the AUSA who decides, based on his/her
professional judgment, what evidence is covered by Brady or Giglio and must,
therefore, be disclosed to the defendant. Plainly, the AUSA is responsible for
disclosing any such material of which he/she is aware.
An AUSA must ask the case agent if he/she or any other member of the prosecution
team knows of any Brady / Giglio material in an effort to fulfill the “duty to learn of
any favorable evidence known to the others acting on the government’s behalf in the
case.” Kyles, 514 U.S. at 437. AUSAs must be mindful that potential Brady/Gigilio
material that is disclosed to the defendant will not necessarily be admissible at trial.14
The AUSA should make sure that the case agent understands this fact.
Brady material include s any evidence favorable to an accused that is material to the
question of either guilt or punishment. Such material includes, for example,
information that: tends to show that someone else committed the criminal act; tends to
show that the defendant did not have the requisite knowledge or intent; tends to show
the absence of any element of the offense, or which is inconsistent with any element
of the offense; either casts a substantive doubt upon the accuracy of evidence
including but not limited to witness testimony the AUSA intends to rely on to prove
This responsibility is similar to the case agent’s responsibility to inform all
federal, state, local and tribal government employees to whom grand jury materials
are disclosed of the rule of grand jury secrecy. See Fed. R. Crim. P. 6(e)(3)(A)(ii),
(B).
13

For example, the evidence might be excluded because it is irrelevant, see
Fed. R. Evid. 402, because its probative force is outweighed by the risk of unfair
prejudice or other negative factors (see Fed. R. Evid. 403), or because it is hearsay
(see Fed. R. Evid. 802). Therefore, when the AUSA does disclose Brady material
to the defendant, he/she should consider whether grounds exist for filing a motion
in limine to exclude or limit the evidence. (Keep in mind, though, that “the judge
may always change his mind [about an in limine ruling] during the course of a
trial.” Ohler v. United States, 120 S. Ct. 1851, 1854 n.3 (2000).)
14

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 an element of any crime charged, or which may have a significant bearing on the
admissibility of prosecution’s evidence (see USAM 9-5.001( c)); tends to show the
existence of an affirmative defense, such as entrapment or duress; and/or tends to
show the existence of past or present circumstances that might reduce the defendant’s
guideline range under the federal Sentencing Guidelines, support a request for a
sentence at the low end of the guideline range or for a downward departure, or make
inapplicable to the defendant a mandatory minimum sentence.
Giglio material includes “evidence affecting [the] credibility” of key government
witnesses.” Giglio v. United States, 405 U.S. 150, 154 (1972). Under DOJ Policy,
Giglio materials must be disclosed whether or not the defendant has made a
request for such materials. This duty exists with respect to key government
witnesses at suppression hearings, trials, and sentencing hearings. Giglio material
includes, for example, information that tends to show a witnesses bias, prior
dishonesty, criminal convictions, prior inconsistent statements; untruthful character;
and incapacity. The United States is required only to disclose the Giglio material that
the prosecution team knows about. The prosecution team is not generally required to
look for unknown Giglio material, with the exception of law enforcement
officers/agents.
AUSAs must be mindful that, with respect to law enforcement agents/officers, this
United States Attorney’s Office has established a Giglio Implementation Plan in
accordance with DOJ policy. If defense counsel makes a specific request for an
agent’s/officer’s personnel files, or the court orders the United States to review such
files (or if an AUSA request such files reviewed), a request must be submitted to the
Senior Litigation Counsel (SLC) and, in some circumstances the Criminal Chief. The
SLC and/or the Criminal Chief are the only authorized persons to request personnel
file information and to advise the AUSA about any potential impeachment
information contained therein.
D.
Local Rules and Standing Orders
AUSAs must be mindful that in the EDWA, the courts have entered a standing
discovery order which provides for discretionary early, reciprocal discovery. That
order also provides that, on a case by case basis, the United States may file a notice
of non-disclosure if an AUSA intends to opt out of the mutual obligations set forth in
the order.
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 In appropriate cases AUSAs may file a notice of non-disclosure, where for example,
the discoverable material cannot be disclosed by the date imposed by the order, where
witness security concerns exist, where disclosure will negatively impact an on-going
investigation, etc.

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