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CRIMINAL DISCOVERY POLICY
United States Attorney’s Office
Southern District of Georgia
October 15, 2010

Edward J. Tarver
United States Attorney

James D. Durham
First Assistant United States Attorney
Brian T. Rafferty
Criminal Division Chief
Frederick W. Kramer
Joseph D. Newman
Assistant United States Attorneys
Senior Litigation Counsel

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General Principles for Discovery
This document sets forth the Office’s policy on discovery in criminal cases. The Outline
that follows is intended to provide a checklist and general guidance. The Office’s policy and the
Outline is subject to legal precedent, court orders, and local rules. It provides prospective
guidance only, is not intended to have the force of law, or to create or confer any rights,
privileges, or benefits on any person. See United States v. Caceres, 440 U.S. 741 (1979).
The discovery obligations of federal prosecutors in this District are established by the
Federal Rules of Criminal Procedure, 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), and relevant case law, the
Department of Justice’s policy on the disclosure of exculpatory and impeachment information,
the Local Rules of Criminal Procedure, and the rules governing professional conduct. We must
comply with the authorities set forth above.
In most cases, prosecutors in this District will provide discovery beyond what the rules,
statutes, and case law mandate, pursuant to this District’s “expanded discovery practice,”1 which
is defined further in this document. The expanded discovery practice will only be followed in
cases where the Defendant has “opted in” to the discovery obligations of Rule 16 of the Federal
Rules of Criminal Procedure, including but not limited to Defendant’s obligation to provide
Reciprocal Discovery.
In exceptional cases, an Assistant United States Attorney may seek to deviate from this
expanded discovery practice. However, before doing so, the Assistant United States Attorney
must obtain approval from the Criminal Division Chief.
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

1

This Office has, at times, described its discovery policy as “Open File,” but that term
should no longer be used, as it may be misleading as to the scope of the information being provided.
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(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 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.
As final note, prosecutors in this District are encouraged to seek guidance on discovery
issues from the District’s Senior Litigation Counsel and the Criminal Division Chief. Although
this Policy and the aforementioned rules and caselaw provide a solid foundation for a
prosecutor’s understanding of its discovery obligations, the District’s Senior Litigation Counsel
and Criminal Division Chief can provide useful insights on discovery from experience, not only
in terms of what is discoverable, but also on where discovery information might be found.

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These general principles provide the basic foundation for this Office’s discovery policy.
The Outline that follows provides further guidance. The Outline does not and could not answer
every question that may arise in a particular case. There is no substitute for being intimately
familiar with the rules, statutes, and case law. Compliance with the governing legal authorities
and this Office’s policy on discovery will help to achieve a fair and just result in every case,
which is our singular goal in pursuing a criminal prosecution.
Edward J. Tarver
United States Attorney
Southern District of Georgia

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I.

Sources of Obligations and Resources
A.

Federal prosecutors are subject to several overlapping legal and ethical standards
with respect to discovery
1.

Relevant legal standards under the Federal Criminal Rules and applicable
case law

2.

Expanded discovery obligations adopted by the Department of Justice and
the USAO of SDGA

3.

a.

See, Guidance for Prosecutors Regarding Criminal Discovery,
DAG Ogden, Jan. 4, 2010 (hereinafter “Jan. 4, 2010 Guidance”)

b.

See, U.S. Attorney’s Manual (USAM) § 9-5.001 and USAM § 95.100

Rules of Professional Conduct
a.

B.

Generally, the obligations imposed by DOJ are broader than those required under
the Rules and case law
1.

II.

AUSAs generally satisfy their ethical obligations when they
comply with DOJ guidance. The Rules of various jurisdictions,
however, differ. When in doubt, consult with PRO Joseph D.
Newman.

Prosecutors should be mindful that DOJ policy and the Expanded
Discovery Practice encourage broad and early disclosure of discovery
materials in order to promote truth-seeking and to foster a speedy
resolution of the case. These considerations, however, must be
counterbalanced with the specific needs of the case, the need to protect
witnesses and the need to protect ongoing investigations.

Gathering and Reviewing Potentially Discoverable Information
A.

The Prosecution Team- defined by DOJ to include “federal, state, and local law
enforcement officers and other government officials participating in the
investigation and prosecution of the criminal case against the defendant.” USAM
§ 9.5-001.

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1.

AUSAs should consult and be familiar with the directions provided in the
Jan. 4, 2010 Guidance as to who may be included in the Prosecution
Team.

2.

In multi-district investigations, include AUSAs and prosecutors from
other USAOs and DOJ components.

3.

May include regulatory agencies (SEC, FDIC, EPA, etc.) or other noncriminal or intelligence agencies in complex cases.

4.

Prosecutors should consider the following factors in determining whether
potentially discoverable information may be held by another federal
agency:
a.

Whether the prosecutor and the agency conducted a joint
investigation or shared resources related to investigating the case;

b.

Whether the agency played an active role in the prosecution,
including conducting arrests or searches, interviewing witnesses,
developing prosecutorial strategy, participating in targeting
discussions, or otherwise acting as part of the prosecution team;

c.

Whether the prosecutor knows of and has access to discoverable
information held by the agency;

d.

Whether the prosecutor has obtained other information and/or
evidence from the agency;

e.

The degree to which information gathered by the prosecutor has
been shared with the agency;

f.

Whether a member of an agency has been made a Special Assistant
United States Attorney;

g.

The degree to which decisions have been made jointly regarding
civil, criminal, or administrative charges; and

h.

The degree to which the interests of the parties in parallel
proceedings diverge such that information gathered by one party is
not relevant to the other party.

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5.

B.

“Prosecutors are encouraged to err on the side of inclusiveness when
identifying the members of the prosecution team for discovery purposes.”
Jan. 4, 2010 Guidance.

Information to be Reviewed
1.

The Investigative Agency’s Files- AUSAs may choose to review the file
or request production of potentially discoverable materials from the case
agents.
a.

2.

3.

the file includes documents such as FBI Electronic
Communications (ECs), DEA teletypes, inserts, emails, etc.

Confidential Informant/Source Files
a.

AUSAs shall review the entire informant file of any testifying
informant, not just the portion relating to the current case,
including all proffer, immunity and other agreements, assessments,
payment information and other potential impeachment
information. AUSAs should review the entire file of any nontestifying informant for any Brady information.

b.

AUSAs shall also consult with the case agents to ensure that all
potentially discoverable information has been properly
documented in the CI and/or other pertinent file.

c.

AUSAs shall consult with the case agents to determine whether
any statutes, agency regulations or policies prohibit disclosure of
potential Giglio materials—e.g., I.R.S. taxpayer information, drug
and alcohol counseling records, certain DEA intelligence
files—and/or other privacy and security considerations. If such
considerations prohibit direct disclosure of a document or file, the
AUSA may choose to disclose discoverable information in
summary format to the defendant rather than producing the
underlying documents. If such considerations prohibit disclosure
of the information in any form, the AUSA shall consult with
USAO and Agency supervisors to determine whether the
information may be disclosed to the Court ex parte, in camera and
the impact on the case if the court determines that the information
must be released.

All evidence and information gathered during the investigation.
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4.

Documents or evidence gathered by civil attorneys and/or regulatory
agencies in parallel civil investigations.

5.

Substantive case-related communications

6.

a.

Substantive communications include 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.

b.

“‘Substantive’ case-related communications are most likely to
occur (1) among prosecutors and/or agents, (2) between
prosecutors and/or agents and witnesses and/or victims, and (3)
between victim-witness coordinators and witnesses and/or
victims.” See Jan. 4, 2010 DAG Guidance.

c.

Substantive case-related communications do not include logistical
communications. Logistical communications include emails which
only contain travel information, or the dates and times of hearings
or meetings.

d.

AUSAs and Agents should print and maintain any substantive
case-related e-mails. Substantive case-related e-mails are to, from
or between agents, witnesses and USAO personnel that include
reports about investigative activity, discussions of the relative
merits of evidence, characterizations of potential testimony,
interviews of or interactions with witnesses/victims and issues
related to credibility. Note: email communications from
paralegals, auditors or other USAO personnel may become Jencks
materials if such communications relate to matters on which they
later become witnesses.

Gilgio information for law enforcement witnesses (see generally USAM
9-5.100)
a.

SDGA’s Giglio coordinator (Requesting Official) is Deputy
Criminal Chief Karl Knoche.

b.

Each investigative agency must establish an Agency Official who
is to be the primary contact for coordinating the disclosure of
Giglio information. With respect to Federal task forces including
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state and local agencies and law enforcement, the lead Federal
investigative agency is responsible for gathering and disclosing to
the USAO any potential Giglio information relating to such state
and local agents/officers.
c.

7.

When necessary to request impeachment information, the AUSA
must contact the Requesting Official (Karl Knoche), who will then
request that the Agency Official disclose the following
information:
i.

any finding of misconduct that reflects upon the
truthfulness or possible bias of the employee, including a
finding of lack of candor during an administrative inquiry;

ii.

any past or pending criminal charge brought against the
employee; and

iii.

any credible allegation of misconduct that reflects upon the
truthfulness or possible bias of the employee that is the
subject of a pending investigation.

d.

AUSAs should consult with the Giglio coordinator (Karl Knoche)
to determine if allegations which are unsubstantiated, not credible,
or have resulted in exoneration should be disclosed. See USAM
9-5.100.

e.

Throughout the Giglio investigation and disclosure process,
AUSAs must remain mindful of the privacy interests of the law
enforcement witness.

f.

AUSAs should update requests for Giglio information from the
investigative agency as appropriate.

Giglio information for non-law enforcement witnesses, includes, but is not
limited to:
a.

Prior inconsistent statements;

b.

Benefits provided to witnesses, including but not limited to:
i.

Dropped or reduced charges,

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c.

d.

ii.

Immunity,

iii.

Expectations of downward departures or motions for
reduction of sentence,

iv.

Assistance in a state or local criminal proceeding,

v.

Considerations regarding forfeiture of assets,

vi.

Stays of deportation or other immigration status
considerations,

vii.

S-Visas,

viii.

Monetary benefits,

ix.

Non-prosecution agreements,

x.

Letters to other law enforcement officials (e.g. state
prosecutors, parole boards) setting forth the extent of a
witness's assistance or making substantive
recommendations on the witness's behalf,

xi.

Relocation assistance, and

xii.

Consideration or benefits to culpable or at-risk
third-parties;

Witness bias, including but not limited to:
i.

Animosity toward defendant,

ii.

Animosity toward a group of which the defendant is a
member or with which the defendant is affiliated,

iii.

Relationship with a victim, and

iv.

Known but uncharged criminal conduct (that may provide
an incentive to curry favor with a prosecutor);

Prior acts under Fed. R. Evid. 608 and prior convictions under Fed.
R. Evid. 609,
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C.

III.

e.

Known substance abuse or mental health issues; and/or

f.

Inconsistent witness statements. Note: The Jan. 4, 2010 DAG
Guidance contains detailed instructions for ensuring that
inconsistent witness statements are properly documented and
disclosed. AUSAs must be familiar with those requirements. In
general:
i.

AUSAs generally should ensure that all witness interviews
are memorialized in a report,

ii.

Material variations by a witness should be documented and
must be disclosed, and

iii.

AUSAs may need to review agents’ notes on a case-bycase basis.

Conducting the Review
1.

The Jan. 4, 2010 DAG Guidance provides guidelines on how AUSAs
should conduct their discovery review. The format of this review will
necessarily be conducted on a case-by-case basis. Ultimately, it is the
responsibility of the AUSA to ensure that all discovery obligations have
been met.

2.

In the SDGA, AUSAs should whenever possible conduct pre-indictment
discovery meetings in complex or unusual cases with case agent(s) and/or
any cooperating Federal, state or local regulatory agencies to discuss the
scope, location and sensitivity of potentially discoverable materials. Such
meetings should include any USAO staff who have participated in the preindictment investigation—e.g., auditors, paralegals, ALS support and/or
victim-witness coordinators. If a pre-indictment discovery conference is
not feasible, the conference should be held as soon as practicable after the
indictment is returned, but not later than arraignment.

Disclosing Discoverable Information
A.

Rule 16 provides for the discovery of the following, of which AUSAs have a due
diligence and affirmative duty to inquire of investigating agencies:
1.

Recorded and written statements made by the defendant before or after
arrest, including:
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2.

a.

Defendant's grand jury testimony; and

b.

Recorded telephone calls, body wires, T-III electronic
surveillance, subject to protective order if necessary.

The substance of any oral statements made by the defendant to any person
then known to the defendant to be a government agent, including:
a.

Pre-arrest statements not discoverable if unknown to defendant
that other party was a government agent and

b.

Third party admissions not discoverable.

3.

The defendant's prior criminal history;

4.

Documents and tangible things, where disclosure is material2 to defense;
the government intends to use in case-in-chief; and/or the evidence was
obtained from or belonged to the defendant. (Note: the Government is
only required to produce what is in their possession, custody or control;
but control may depend on whether state and local law enforcement are
involved, or federal, state and local regulatory agencies are involved. See,
section II supra); and

5.

Reports of scientific tests and medical examinations;
a.

Where defendant shows materiality; or

b.

The government intends to use in case-in-chief.

6.

Reciprocal discovery from the defense is required if Rule 16 discovery has
been provided

7.

Limitations on Discovery
a.

Rule 16(a)(2) excludes agent reports and witness statements except
as provided under Jencks Act;

.

2

The standard for materiality being where disclosure would enable the accused to
substantially alter the quantum of proof in his favor.
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B.

C.

b.

No right to grand jury testimony except if it constitutes Jencks
material.

c.

No right to the government’s witness list unless defendant makes
specific showing of reasonableness and materiality. (In a capital
case, the defendant does have a right to the government’s
witnesses.)

d.

Witnesses to be used at trial who are in "protective custody or
otherwise under government control" must be made available to
defense counsel one week before trial.

Disclosure of Confidential Informants.
1.

The standard for disclosure of the identity of a non-testifying confidential
informant is reasonable probability that the informer can give relevant
testimony material to the defense.

2..

Informant must be "active participant" and not "mere tipster."

3.

Disclosure not required where:
a.

the informant played only a small or passive role in the offense
charged or

b.

the informant would be in personal danger and the potential
testimony of the informant is not exculpatory.

4.

Disclosure of the identity of a confidential informant is required where the
informant is substantially involved, however the government has no duty
to produce such an informant at trial.

5.

If disclosure is required under case law, the identity of any confidential
informant who participated in or is otherwise a material witness to the
commission of the offense(s) alleged in the indictment shall be disclosed
no later than one week before trial.

Exculpatory Evidence
1.

Brady v. Maryland, 373 U.S. 83 (1963), is not a rule of discovery but
rather one of fundamental fairness and due process. The Brady rule
imposes an affirmative duty on the prosecutor to produce at the
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appropriate time requested evidence that is materially favorable to the
accused either as direct or impeaching evidence. It applies to sentencing
as well as to guilt/innocence determinations. The obligation to disclose is
measured by the character of the evidence, not the character of the
prosecutor. United States v. Agurs, 427 U.S. 97, 110 (1976).
2.

3.

DOJ policy recognizes that a fair trial will often include examination of
relevant exculpatory or impeachment information that is significantly
probative of the issues before the court but that may not, on its own, result
in an acquittal or, as is often colloquially expressed, make the difference
between guilt and innocence. As a result, this policy requires disclosure by
prosecutors of information beyond that which is "material" to guilt as
articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v.
Greene, 527 U.S. 263, 280-81 (1999). (USAM § 9.5-001)
a.

Additionally, 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. (USAM § 9.5-001).

b.

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. (USAM § 9.5-001).

To establish a Brady violation, a defendant bears the burden to show that
non-disclosed materials were:
a.

favorable to the defendant;

b.

material; and

c.

that the prosecution had the materials and failed to disclose them.
Moore v. Illinois, 408 U.S. 786, 794, 795 (1972).

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d.

4.

D.

Mere speculation fails to meet the burden. United States v.
Crowell, 586 F.2d 1020, 1029 (4th Cir. 1978).

United States v. Agurs identified three types of situations implicating a
duty to disclose under Brady:
a.

Where the prosecution knew or should have known its case
contained perjured testimony. Non-disclosure requires reversal
where there is any reasonable likelihood that the false testimony
could have affected the jury's judgment. Id. at 103.

b.

Where the prosecution fails to respond to a defendant's specific
request for information, a new trial must be granted if the
suppressed evidence "might have affected the outcome." Id. at
104. Mere possibility is not enough.

c.

Where the defendant does not request exculpatory evidence,
reversal is necessary only if the undisclosed evidence "creates a
reasonable doubt that did not otherwise exist". Id. at 112.

d.

Evidence which impeaches government witnesses must be
disclosed. Giglio v. United States, 405 U.S. 150 (1972); United
States v. Crowell, 586 F.2d at 1020. Includes plea agreement,
grants of immunity, criminal history, pending indictments, etc.

Jencks Act (18 U.S.C. §3500) and Rules 26.2, 12(i) and 5.1, Fed. R. Crim. P.:
1.

Due process requires production of prior statements of a witness in the
possession of the United States which relate to the events to which the
witness testifies to be produced upon request after the witness testifies.
Jencks v. United States, 353 U.S. 657 (1957); codified at 18 U.S.C. §3500.

2.

Jencks disclosure is a statutory, not Constitutional requirement and should
be read in conjunction with Brady requirements.

4.

Rule 26.2, applies Jencks-like requirements on the government and all
defense witnesses except the defendant.

5.

Rule 12(i) applies Rule 26.2 to suppression hearings and Rule 5.1 applies
Rule 26.2 to preliminary hearings. At such hearings, a law enforcement
officer shall be deemed a witness called by the government. Privileged
material shall be excised. Pursuant to Rule 5.1, if the government fails to
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produce Jencks material, the magistrate cannot consider the testimony
from that witness.
6.

Jencks applies to statements in the possession of the Government, but
possession may depend on whether the state and local law enforcement are
involved, or federal, state and local regulatory agencies are involved.
(See, section II supra):
a.

Pre-Sentence Reports and documents of the Probation Office,
personal diaries of defendants have been held not in the possession
of the United States.

b.

The writing must be a statement attributable to the witness to fall
within the Jencks Act:
i.

Notes and reports of an investigator are not Jencks
statements of the interviewee. United States v. Hinton, 719
F.2d 711, 722 (4th Cir. 1983). Interview notes that contain
verbatim quotes do not constitute Jencks statements.
United States v. Foley, 598 F.2d 1323 (4th Cir. 1979).

ii.

Unless the interviewee approves or adopts the notes or
report.

c.

Most circuits permit routine destruction of an agent's notes after
they have been incorporated into a formal report, i.e. a DEA-6 or
FBI-302. If the witness read and approved the notes, they must be
preserved. United States v. Crowley, 586 F.2d at 1028.

d.

A tape recorded interview is the witness' Jencks statement and
must be preserved.

e.

Standard of review on appeal for Jencks violations is harmless
error. In the absence of bad faith or prejudice, the failure to
disclose Jencks Act material will not result in reversal. United
States v. Schell, 775 F.2d 559, 567 (4th Cir. 1985).

f.

With limited exception, sensitive material such as victim/witness
names, telephone numbers, addresses, dates of birth, social
security numbers, bank account and/or financial information may
be redacted and certain impeachment material withheld from the
Expanded File without supervisory approval. Compliance with
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Rule 49.1 of the Federal Rules of Criminal Procedure is
mandatory.
E.

Timing of Disclosure
1.

DOJ Guidance:
a.

“Providing broad and early discovery often promotes the
truth·seeking mission of the Department and fosters a speedy
resolution of many cases. It also provides a margin of error in case
the prosecutor's good faith determination of the scope of
appropriate discovery is in error. Prosecutors are encouraged to
provide broad and early discovery consistent with any
countervailing considerations.” Jan. 4, 2010 Guidance.

b.

Countervailing concerns to early disclosure include, but are not
limited to:
i.
protecting victims and witnesses from harassment or
intimidation;
ii.

protecting the privacy interests of witnesses;

iii.

protecting privileged information;

iv.

protecting the integrity of ongoing investigations;

v.

protecting the trial from efforts at obstruction;

vi.

protecting national security interests;3

vii.

investigative agency concerns;

viii.

enhancing the likelihood of receiving reciprocal discovery
by defendants;

3

In cases that involve national security interests, all AUSAs are expected to comply
with 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.”
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ix.

any applicable legal or evidentiary privileges; and

x.

other strategic considerations that enhance the likelihood of
achieving a just result in a particular case.

2.

Exculpatory information, regardless of whether the information is
memorialized, must be disclosed to the defendant promptly upon
discovery.

3.

Giglio/impeachment material must be disclosed at a reasonable time
before trial to allow the trial to proceed efficiently. (USAM §9-5.001).

4.

Brady and Giglio evidence must be disclosed regardless of whether the
defendant makes a request for exculpatory or impeachment evidence.

5.

Exculpatory or impeachment information that casts doubt upon sentencing
factors but does not relate to proof of guilt, must be disclosed no later than
the court's initial presentence investigation. (USAM §9-5.001).

6.

A prosecutor must notify the Chief of the Criminal Division before
any disclosure is made of any classified exculpatory or impeachment
information.4 Upon supervisory approval, notice will be provided to the
defendant that classified materials contain potential impeachment
information and of the time and manner by which disclosure of the
exculpatory or impeachment information will be made. (USAM §95.001).

7.

“The government is encouraged, but not required, to provide early
disclosure of Jencks Act material.”

8.

In SDGA, the government will produce and/or make available
discovery at Defendant’s arraignment, or within a reasonable time
thereafter.

4

Exculpatory information that includes classified or otherwise sensitive national
security material may require certain protective measures that may cause disclosure to be delayed
or restricted (e.g. pursuant to the Classified Information Procedures Act). (USAM § 9.5-001). In
cases that involve national security interests, all AUSAs are expected to comply with 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.”
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9.

IV.

In cases in which a Defendant will be pleading guilty to an information,
the government will produce and/or make available discovery at a
reasonable time prior to Defendant’s Rule 11 hearing.

Expanded Discovery Practice In The Southern District of Georgia

A.
In most cases, prosecutors in the SDGA will follow an Expanded Discovery
Practice, which is intended to make discovery available to defense counsel in an indicted criminal
case in order to expedite its resolution. The Expanded Discovery Practice does not create any
procedural or substantive rights for the defendant or for defense counsel, and therefore should not
give rise to judicial review of alleged violations.
B.
The Expanded Discovery Practice will only be followed in cases where the
Defendant has “opted in” to the discovery obligations of Rule 16 of the Federal Rules of
Criminal Procedure, including but not limited to Defendant’s obligation to provide Reciprocal
Discovery. Any deviation must be approved by the Chief of the Criminal Division.
C.
Although the Expanded Discovery Practice will include materials in addition to
those materials which the government is required to make available to the defense pursuant to
Rule 16 of the Federal Rules of Criminal Procedure, the Expanded Discovery Practice does not
mandate that the prosecutor make available to defense counsel everything known to the
prosecutor.
D.
Subject to the foregoing, the Expanded Discovery Practice will typically include all
of those materials that must be produced pursuant to Rule 16 of the Federal Rules of Criminal
Procedure, and some or all of the following items:

E.

1.

Investigative reports;

2.

Reports of Interview, including DEA-6 reports, HHS-OIG Reports of
Interview, FBI-302 Reports, and similar agency reports, summarizing
interviews of witnesses;

3.

Grand Jury transcripts, and other materials that fall within the definition of
materials that must be produced pursuant to the Jencks Act (18 U.S.C.
§3500) or Rule 26.2 and Rule 5.1 of the Federal Rules of Criminal
Procedure; and,

4.

Transcripts of audio and video recordings.

The Expanded Discovery Practice will not include the production of attorney work

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product, including internal memoranda, internal government documents made by the attorney for
the government, nondiscoverable correspondence, or internal memoranda made by government
agents in connection with the investigation or prosecution of the case.
F.
The Expanded Discovery Practice will also not include the production of
nondiscoverable materials which are not in the U.S. Attorney’s file but which are in possession of
federal, state, or local law enforcement agencies, regardless of whether the prosecutor is aware of
such materials. Any request by defense counsel to review nondiscoverable materials in possession
of an agency will be considered on a case-by-case basis.
G.
An individual prosecutor may deviate from the Expanded Discovery Practice (as
defined herein), but only in exceptional cases, after consulting with the approval of the Chief of
the Criminal Division for the District. If a request to deviate from the Expanded Discovery
Practice is approved by the Chief of the Criminal Division, the individual prosecutor shall
announce at the defendant’s arraignment that the Government will not be following the Expanded
Discovery Practice, and will describe for the Court what materials will be provided to Defendant
as part of discovery.

H.
Although the USAO has previously described its policy as “Open File,” that term
should no longer be used because it may be misleading as to the scope of the information being
provided. As described herein, the “Expanded Discovery Practice” refers to the government
providing greater discovery than that required under Rule 16 of the Federal Rules of Criminal
Procedure.
I.
Sensitive material such as victim/witness names, telephone numbers, addresses,
dates of birth, social security numbers, bank account and/or financial information may be
redacted and certain impeachment material withheld from the Expanded File without supervisory
approval.
V.

Making A Record
A.

AUSAs shall make a record of when and how information is provided or
otherwise disclosed to defense counsel and/or the defendant:
1.

Production cover letters generally should describe the information being
provided and, where appropriate, list Bates numbers of disclosed
documents

2.

All telephone conversations or other oral communications with defense
counsel describing discovery production, withholding of documents or
discovery requests from either side should be documented, such as a
memo to the file or a follow-up email with counsel.
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B.

Keeping accurate and contemporaneous records reduces subsequent litigation,
including post-conviction actions.

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