Memorandum
United States Attorney
Northern District of Illinois

Subject

Date

Office Policy Regarding Discovery in Criminal Cases1

To

All AUSAs handling criminal matters

From

October 18, 2010

Patrick J. Fitzgerald
United States Attorney

Complying with our discovery obligations, including our Brady and Giglio
obligations, is among our essential responsibilities as prosecutors. The fair and effective
operation of the criminal justice system depends on the parties' compliance with the
disclosure obligations that are established by the Constitution and laws of the United States,
case law, and local court rules.
Two documents summarize the Department's policy regarding discovery: the United
States Attorneys' Manual section relating to discovery (USAM § 9-5.001), and a guidance
memorandum issued by the Deputy Attorney General in January 2010 to all Department
attorneys handling criminal matters. You should be familiar with both of these documents.
Taken together, they provide detailed guidance regarding the considerations that govern our
approach to discovery. It is this Office's policy to comply fully and in a timely manner with
all applicable discovery obligations, and with the principles set forth in the USAM and the
Deputy Attorney General's memorandum. In addition, the Department's Federal Criminal
Discovery blue book, available here, is an excellent resource on discovery issues, and
additional resources are available through the USABook Criminal Discovery Page.
You should be guided by the principles and practices set out in those documents as
cases move through every stage of litigation, including pretrial motions, trial, sentencing, and
post-conviction proceedings. Because facts and legal issues often evolve as litigation
progresses, you should periodically reassess your discovery decisions to ensure that they
remain appropriate in light of current circumstances. It is important that you consult with a

1

The guidance contained in this memorandum 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).

 supervisor if you have questions about how to interpret or apply the Department's guidance
in the context of your case, or if you are having difficulty in obtaining from an investigating
agency the assistance you believe is necessary to comply with our discovery obligations.
Discovery in criminal cases differs fundamentally from civil discovery, and
traditionally has been much less expansive, reflecting efforts by Congress and the courts to
balance the complex mix of interests implicated by the criminal discovery process.
Notwithstanding the limited scope of discovery required in criminal cases, the Department
and this Office recognize that the interests of justice often are best served by providing
discovery that goes beyond what we are obligated to provide – in terms of the scope of
production, the timing of production, or both. Consequently, it is our practice to evaluate on
a case-by-case basis whether to provide discovery that exceeds our obligations. This
evaluation may include the following factors, among others:
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the benefits to the parties and the justice system from providing broader
discovery;
the prospect that broader discovery will induce cooperation or a prompt
disposition of the case;
whether disclosure of certain information poses a risk that witnesses will be
harmed or intimidated;
whether disclosure of certain information could compromise national security
interests;
whether disclosure of certain information could compromise an ongoing
investigation, the identity of an informant, or a confidential law enforcement
technique;
whether the information in question implicates the privacy interests of victims
or witnesses, or constitutes protected intellectual property or sensitive business
information;
the materiality of the information in question;
the volume and complexity of discovery in the case, as well as of the
information in question;
the time remaining until trial;
whether disclosure of certain information would implicate legal or evidentiary
privileges;
the extent of the defendant's compliance with his or her own discovery
obligations; and
strategic concerns which bear on the likelihood of achieving a just result in a
particular case.

Our experience has been that after considering these factors we often are able to
provide discovery that exceeds our obligations, and that by doing so we frequently serve the
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 interests of all parties and the justice system as a whole. (Even when you conclude that
expansive discovery is appropriate in a particular case, you should never refer to your
approach as "open file" discovery; there is no such thing, and use of this term can lead to
misunderstandings.)
Recurring Issues Regarding Discovery
Although more detailed reference materials regarding discovery case law and practice
are available in Crimbank and through USABook, a number of recurring discovery issues
warrant a brief discussion here:
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Timing of Disclosures. Although many different considerations affect the
timing of disclosures, it is our ordinary practice to disclose Rule 16 material
as promptly as feasible after arraignment. In addition to the factors listed on
page 2 above, the timing of this production also may be affected by the volume
of material to be disclosed and the ability of AUSAs, agents, and support staff
to assemble and account for it. It is our ordinary practice to disclose Jencks
Act and Giglio information in advance of the trial or other proceeding for
which it is relevant. How far in advance of that proceeding depends on many
variables, including the factors listed above, although we must bear in mind
that as to Giglio information, the information must be disclosed in sufficient
time for the defense to make effective use of it. It is our ordinary practice to
disclose Brady information (as opposed to information that is merely
impeaching) as soon as practicable. If you believe circumstances exist which
may justify delay in disclosing Brady information, you should consult a
supervisor.

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Scope of the Prosecution Team. In most cases, defining the prosecution team
for purposes of determining the scope of our discovery obligations is
straightforward: the prosecution team consists of our office and the law
enforcement agency or agencies investigating the case. Defining the scope of
the prosecution team can be more difficult in cases involving task forces and
parallel civil or administrative proceedings. The Deputy Attorney General's
January 2010 memorandum identifies a number of factors relevant to this
assessment, but in general, the more deeply involved an agency is with the
investigation, the more likely it is that the agency is a member of the
prosecution team. For example, the mere fact that a case is investigated by a
squad in a federal agency that includes a task force officer from a local police
department does not itself make that department a member of the prosecution
team; if, however, the task force officer uses or draws on investigative
intelligence or informants from his department to further the investigation, the
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 answer may well be different. You should consult a supervisor if you have
questions about the scope of the prosecution team in your case.
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Review of Agent and Witness Email. There are three general categories of
case-related email communications to consider for discovery purposes:
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Case-related email sent to AUSAs: You should retain and review for
discovery purposes all substantive case-related email to AUSAs from
potential witnesses – including, by way of example, agents, victims,
eyewitnesses, and expert witnesses. If attorneys representing witnesses
send email making factual representations on behalf of witnesses, you
should retain and review that email as well. (One convenient way to
track case-related email is to create a mail folder in Outlook for each
case, and store case-related email in that folder.) If a case has been
reassigned to you from another AUSA, you should obtain access to
case-related email from your predecessor; the systems staff can help
you with this, if necessary.

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Case-related email between agents and non-law enforcement
witnesses: You should ask agents assigned to the case to provide for
your review all substantive case-related email between agents working
on the case and potential witnesses outside the prosecution team. This
would include, for example, emails between agents and informants,
victims, eyewitnesses, and other witnesses. If an agent has exchanged
text messages with potential witnesses and has the capability to retain
them (for example, by auto-forwarding them to an email box), those
messages should be reviewed as well. It may be useful to discuss a
plan for preserving emails of this nature with the case agent early in an
investigation.

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Emails among agents and agency personnel: Substantive case-related
emails that are written by testifying agents to other agency personnel
generally constitute Jencks Act material and must be produced. This
category includes case status reports written to agency supervisors and
headquarters, and often will include reports approved or adopted by
testifying agents (for example, when a supervisory agent who is
testifying formally approves reports that are placed in the case file, or
sends to agency headquarters under the supervisor's name a case status
report that actually was prepared by the case agent).
With respect to email communications written by agents who are not
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 testifying, you should ask agents assigned to the case whether there are
substantive case-related emails written by members of the team that
contain information not otherwise documented in the case file or
presented for your review during discovery.
The volume and nature of internal agency email is such that there is no
practical opportunity for an item-by-item review by an AUSA; much
of this email will concern non-substantive matters or information
documented in investigative reports or elsewhere. As a result, agents
are in the best position to perform an initial review of these materials,
producing to you for review substantive case-related internal emails
that (1) were written or adopted by testifying agents, or (2) were written
by non-testifying agents that contain information not documented
elsewhere. The case agent is responsible for ensuring that this task is
performed, and you should discuss with the case agent the best way to
carry out this responsibility.
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Review of Informant Files. The Deputy Attorney General's January 2010
memorandum directs prosecutors to review the entire agency file for each
testifying informant or confidential source. There also will be times when it
is necessary to review the files of non-testifying sources (for example, to
assess the potential viability of an entrapment defense). In reviewing an
informant file, you should be attentive not just to the substantive information
provided by the informant, but to the benefits provided to the informant and
the structure of those benefits (for example, some agencies pay informants a
percentage of seizures that they generate). When you need to review an
informant file, you should make the request through the case agent. Because
of the sensitivity of these files, agencies maintain tight restrictions on them,
and you may need to review them in agency offices. You should be attentive
to the security issues involving informant files, and before disclosing any
information from an informant file should discuss the proposed disclosure with
the case agent. If there is disagreement about the proposed disclosure, you
should consult a supervisor.

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Document Tracking. Thorough review and production of documents during
discovery is impossible unless you know what documents were produced and
obtained during the investigation.
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Agent Reports. Most agencies maintain an electronic index of agency
reports generated during an investigation. You should request and

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 review a copy of this index to ensure that you have paper copies of all
relevant reports reflected in the file.
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Subpoenaed Records.
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Planning a Tracking System. To prepare for discovery you
will need to identify and review documents obtained by
subpoena during the investigation. This process is simpler and
more reliable when, beginning early in the investigation, you
and the agents agree upon and follow a process for tracking
incoming documents. In establishing such a process, bear in
mind the tracking difficulties posed when subpoenaed materials
come directly to the USAO, or when multiple investigating
agencies are involved. The system that you and the agents
create should be easily understood by others in the event that the
case is reassigned to new agents and/or AUSAs.

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Subpoenas Issued By USAO. You should maintain a subpoena
log so that when it comes time to produce discovery, you have
a ready record of what subpoenas have been issued and whether
materials have been received in response to those subpoenas. In
addition, such a log will aid you in complying with the Right to
Financial Privacy Act in returning bank records to the grand jury
before indictment. Sample subpoena logs are available in the
Practice Materials folder on Crimbank. (For health care
administrative subpoenas issued by our office, the health care
paralegal maintains a log.)

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Subpoenas Issued by Agencies. Most investigating agencies
have administrative subpoena authority. With respect to some
agencies (the FBI, for example), this authority is limited to
certain categories of investigation; other agencies (many
inspector general's offices, for example) have administrative
subpoena authority that is essentially coextensive with their
investigative authority. The case agent should be able to
provide you with a record of the administrative subpoenas
issued in the investigation (including before the case was
presented to our office), as well as the materials received in
response to those subpoenas.

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Paralegal Assistance, Scanning, and Creating a Document
Database. When you anticipate receiving a substantial volume
of materials in an investigation, you should request paralegal
assistance at an early stage and discuss with your paralegal and
our Automated Litigation Support staff the best way to organize
information obtained during the investigation, including the
possibility of scanning documents and creating a document
database. Setting up a process for getting information into
electronic format and into a database early in the investigation
can greatly simplify discovery.

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Discovery Planning. In all but the simplest cases, AUSAs and case agents
should meet prior to indictment to review discovery issues and plan for the
production of discovery – including the allocation of discovery-related tasks
between AUSAs and agents. To ensure that potentially discoverable items are
not overlooked, it may be helpful to review a checklist with the case agent.
Discovery checklists for different types of cases will be available in the
Practice Materials folder on Crimbank.

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Discovery Production. It is essential to maintain an accurate record of what
is produced in discovery. There are a variety of ways to do this, including
detailed transmittal letters, using Bates numbers in discovery productions, and
maintaining copies of what was produced. In addition, it is important to
remember to redact sensitive personal and law enforcement information from
materials produced in discovery, when it is permissible to do so. Guidelines
and procedures for performing redactions will be available in the Practice
Materials folder on Crimbank. The Practice Materials folder also will contain
guidance concerning the discovery of certain types of specialized materials,
such as various wiretap-related documents, Suspicious Activity Reports, and
child pornography and other contraband.

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Protective Orders. It is our practice to seek a protective order limiting the
dissemination of discovery materials whenever we produce materials of a
potentially sensitive nature. An automated protective order is available in
HotDocs format (you are encouraged to use this version), and copies of
protective orders are available in the Practice Materials folder on Crimbank.

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Giglio Inquiries of Witnesses. Giglio inquiries should be a routine part of
witness preparation.

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Law Enforcement Witnesses. You should have a direct conversation
with each law enforcement witness about the existence of Giglio
material. If the witness's response indicates that relevant material may
exist in agency files, or you are aware of allegations about the witness
from other sources, you are encouraged to make a formal Giglio inquiry
using the letters generated by the HotDocs Giglio request letter
template. (When you may not have direct contact with an agency
witness until shortly before trial – as is sometimes the case with lab
personnel – it may be prudent to submit a written Giglio request in
advance.) In addition, you are free to make formal Giglio inquiries
regarding law enforcement witnesses as part of your routine practice.

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Non-Law Enforcement Witnesses. You should have a direct
conversation with non-law enforcement witnesses about the existence
of Giglio material. Additionally, the case agent should perform a
criminal history check and an agency records check for non-law
enforcement witnesses; these checks should be done prior to the
production of § 3500 materials, and should be updated if more than 30
days pass before the witness testifies or if there is any reason to suspect
that additional information may have developed regarding the witness.
(For truly minor witnesses, such as records custodians, criminal records
checks and detailed Giglio conversations may not be necessary.)

The Practice Materials folder on Crimbank will contain suggestions for
standard Giglio questions to be posed to law enforcement and lay witnesses.
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Terrorism and 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.” (This guidance is
available here and in the discovery folder on Crimbank.) 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
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 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:
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Those targeting corrupt or fraudulent practices by middle or upper
officials of a foreign government;

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Those involving alleged violations of the Arms Export Control Act or
the International Emergency Economic Powers Act;

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Those involving trading with the enemy, international terrorism, or
significant international narcotics trafficking, especially if they involve
foreign government or military personnel;

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Other significant cases involving international suspects and targets; and

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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.
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Reciprocal Discovery. While the bulk of the discovery production burden
falls on the prosecution, the defense also has certain discovery obligations, and
we should consistently seek to hold defendants to those obligations, including
bringing non-compliance by defendants to the attention of the court. Click

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 here for a link to the DOJ Discovery Manual section on a criminal defendant's
discovery obligations.
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Adverse Judicial Findings. Notify your section chief (who in turn will notify
the front office) if a judge finds that the government has failed to satisfy its
discovery obligation in a particular case.
Resources for Addressing Discovery Issues

Rather than creating an elaborate discovery manual that attempts to comprehensively
address discovery issues in a single document, we believe that a more helpful and flexible
approach is to provide AUSAs with an array of resources falling into three categories: (1) a
collection of reference materials addressing legal standards and issues relating to discovery;
(2) standard forms and automated documents dealing with various matters relating to
discovery; and (3) practices and resource materials that may assist in carrying out your
discovery obligations. We expect these materials to evolve and expand over time. Below
is a brief description of the materials falling into each category:
Reference Materials: Updated reference materials relating to criminal discovery can
be found on crimbank at V:\Crimbank\General Litigation and Policies\Discovery, as well as
at the USABook page dedicated to criminal discovery.
Standard Forms and Automated Documents: HotDocs has templates for use in
generating draft Giglio request letters to law enforcement agencies, the standard office
discovery letter, and the standard protective order. You should use those templates as starting
points in generating these materials, but circumstances of individual cases may at times
require you to vary certain language.
Practices and Resources that May Assist in Carrying Out Discovery Obligations:
A collection of practice tips, procedural guides, and related documents concerning discovery
is available on crimbank at V:\Crimbank\General Litigation and Policies\Discovery.

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