Memorandum
United States Attorney
Southern District of Ohio
Subject

Date

Criminal Discovery Policy

October 15, 2010

To:
All Criminal Division and National Security Section
AUSAs

From:
Carter M. Stewart,
United States Attorney

On January 4, 2010, the Deputy Attorney General, David W. Ogden, disseminated
guidance concerning criminal discovery, which was developed by a working group made up of
attorneys experienced in criminal discovery matters from the Office of the Deputy Attorney
General, United States Attorneys’ Offices, DOJ Criminal Division, and DOJ National Security
Division, with comment and input from the Office of the Attorney General, the Attorney
General’s Advisory Committee, the Criminal Chiefs Working Group, the Appellate Chiefs
Working Group, the Professional Responsibility Advisory Office, the Office of Professional
Responsibility, information technology support personnel, and law enforcement agencies. See
Ogden, D., Guidance for Prosecutors Regarding Criminal Discovery, January 4, 2010
(“Guidance”). The Guidance established “minimum considerations that prosecutors should
undertake in every case.” Ogden, D., Issuance of Guidance and Summary of Actions Taken in
Response to the Report of the Department of Justice Criminal Discovery and Case Management
Working Group, January 4, 2010, p. 3. It was “intended to establish a methodical approach to
consideration of discovery obligations that prosecutors should follow in every case to avoid
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Deliberative Process Material
Page 1 of 3

 lapses that can result in consequences adverse to the Department’s pursuit of justice.” Guidance,
p. 1. The Guidance is not intended to establish new disclosure obligations, which are already
established through Federal Rules of Criminal Procedure 12(b)(4)(B), 12(h), 12.1, 12.2, 12.3, 16
and 26.2, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405
U.S. 150 (1972), Sixth Circuit precedent (see, e.g., United States v. Presser, 844 F.2d 1275 (6th
Cir. 1988); United States v. Susskind, 4 F.3d 1400 (6th Cir. 1993) (en banc); Bell v. Bell, 512
F.3d 223 (6th Cir. 2008) (en banc)), and existing Department policy as set forth in the United
States Attorneys’ Manual §§ 9-5.001 (Brady) and 9-5.100 (Giglio). The DAG reminds us that
“[p]rosecutors in every district and component must comply with legal requirements and with
Department policy.” Ogden, D., Requirement for Office Discovery Policies in Criminal Matters,
January 4, 2010, p. 1.

On September 29, 2010, Acting Deputy Attorney General Gary G. Grindler disseminated
specific guidance concerning discovery of information in the possession of the Intelligence
Community or Military in criminal investigations. See Grindler, G., Policy and Procedures
Regarding Discoverable Information in the Possession of the Intelligence Community or Military
in Criminal Investigations, September 29, 2010. (“National Security Discovery Guidance”).

Concurrent with issuance of the Guidance, the DAG directed all United States Attorney’s
Offices (and each DOJ litigation component handling criminal cases) to develop a discovery
policy with which prosecutors in each respective office must comply, and that reflects circuit and
district court precedent and local rules and practices. We have developed such a policy, and so as

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Page 2 of 3

 to maintain consistency, we have done so by hereby adopting both the Guidance (as annotated by
our District) and the National Security Discovery Guidance. The Annotated Guidance and the
National Security Discovery Guidance are attached to this Memorandum and may also be found
on our Office’s Intranet site under “Office Policies and Procedures”and at the Criminal Division
Discovery Topic Page of our Intranet site. The Annotated Guidance and National Security
Discovery Guidance, which collectively serve as our District’s new criminal discovery policy
with which prosecutors in our Office must comply (in addition to the existing sources of
discovery obligations described above), replaces our previous criminal discovery policy entitled
“Discovery in Criminal Cases.”

Please take this opportunity to familiarize yourself with the Annotated Guidance, the
National Security Discovery Guidance, as well as the other material referenced above governing
our discovery obligations. Deviation from either the Annotated Guidance or National Security
Discovery Guidance requires written approval from the immediate supervisor on the pertinent
case, which must be maintained in the case file.

Neither this memorandum, the Guidance, the Annotated Guidance, the National Security
Discovery Guidance, nor any of the other memoranda mentioned therein, is 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).

Confidential and Protected Attorney Work Product and
Deliberative Process Material
Page 3 of 3

 u. S. Department of Justice
Office of the Depuly Attorney General

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January 4.2010

MEMORANDU~I'~~MW
~ECUTORS

FROM:

David W. OgdeU
Deputy Attorney General

SUBJECT:

Guidance for Prosecutors Regarding Criminal Discovery

The discovery obligations of federal prosecutors are generally established by Federal
Rules of Criminal Procedure 16 and 26.2, 18 U.S.c. §3500 (the Jencks Act), Brady \I, Marylalld,
373 U.S. 83 (1963). and Giglio v. Unile" Slates, 405 U.S. 1SO (1972). In addition, the
United States Attorney's Manual describes the Department's policy for disclosure of exculpatory
and impeachment infonnation. See USAM §9-5.001. In order 10 Illeet discovery obligations in a
given case, Federal prosecutors must be familiar with these authorities and with the judicial
interpretations and locaJ rules that discuss or address the application of these authorities to
particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet
their discovery obligations in each case, Toward that end, the Department has adopted the
guidance for prosecutors regarding criminal discovery set forth below. The guidance is intended
to establish a methodical approach to consideration of discovery obligations that prosecutors
should follow in every case (0 avoid lapses that can result in consequences adverse to the
Department's pursuit ofjustice. The guidance 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 Uniled Slales v. Coc:ere.\'.
440 US. 741 (1979).
The guidance was developed at my request by a working group of experienced attorneys
with expertise regarding criminal discovery issues that included attorneys from the Office of the
Deputy Attorney GeneraL the United States Attorneys' Offices, lhe Criminal Division, and the
National Security Division. The working group received comment from the Office of the
Attorney General, the Attorney General's Advisory Committee, the Criminal Chiefs Working
Group, the Appellate Chiefs Working Group, the Professional Responsibility Advisory Office,
and the Office of Professional Responsibility. The working group produced this consensus
document intended to assist Department prosecutors to understand their obligations and to
manage the discovery process,

 MEMORANDUM FOR DEPARTME T PROSECUTORS
SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

Page 2

By following the steps described below and being familiar with laws and policies
regarding discovery obligations, prosecutors are morc likely to meet all legal requirements, to
make considered decisions about disclosures in a particular case, and to achieve ajust result in
every case. Prosecutors are reminded to consult with the designated criminal discovery
coordinator in their office when they have questions about the scope of their discovery
obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations
on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact
the Professional Responsibility Advisory Office when they have questions about those or any
other ethical responsibilities.
Dep;'lrtmenl of Justice Guidance for Prosecutors Regarding Criminal Disco\'cry
Step I: Gathering and Reviewing Discovenlble Informlltion l
A.

\Vhere to look-The Prosecution Team

Department policy states:

It is the obligation of federal prosecutors. in preparing for trial, to seek all
exculpatory and impeachment infonnation from all members of the prosecution
team. Members of the prosecution team 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 §9-5.00 t. This search duty also extends to infonnation prosecutors are required to
disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.
In most cases, "the prosecution team'- will include the agents and law enforcement
officers within the relevant district working on the case. In multi-district investigations,
investigations that include both Assistant United States Attorneys and prosecutors from a
Department litigating component or other United States Attorney's Office (USAO), and parallel
criminal and civil proceedings, this definition will necessarily be adjusted to fit the
circumstances. In addition, in complex cases that involve parallel proceedings with regulatory
agencies (SEC, FDIC, EPA, etc.), or other non-criminal investigative or intelligence agencies, the
prosecutor should consider whether the relationship with the other agency is close enough to
make it part of the prosecution team for discovery purposes.

I For the purposes of this memorandum, "discovery" or "discoverable infonnation"
includes infonnation required to be disclosed by Fcd.R.Crim.P. 16 and 26.2, the Jencks Act,
Brady, and Giglio, and additional information disclosable pursuant to USAM §9·5.00 1.

 MEMORANDUM FOR DEPARTMENT PROSECUTORS

Page 3

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery
Some factors to be considered in determining whether to review potentially discoverable
infomlation from another federal agency include:
• Whether the prosecutor and the agency conducted a joint investigation or shared
resources related to investigating the case;
• 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;
• Whether the prosecutor knows of and has access to discoverable information held by
the agency;
• Whether the prosecutor has obtained other information and/or evidence from the
agency;
• The degrec to which information gathered by the prosecutor has been shared with the
agency;
• Whether a member of an agency has been made a Special Assistant United States
Attorney;
• The degree to which decisions have been made jointly regarding civil, criminal, or
administrative charges; and
• The degree to which the interest's of the parties in parallel proceedings diverge such that
information gathcred by onc party is not relevant to the other party.
Many cases arise out of investigations conducted by muhi-agency task forces or otherwise
involving state law enforcement agencies. In such cases, prosecutors should consider (I) whether
state or local agents are working on behalf of the prosecutor or are under the prosecutor's control;
(2) the extent to which state and federal governments are part of a team, are participating in a joint
investigation, or are sharing resources; and (3) whether the prosecutor has rcady access to the
evidence. Courts will generally evaluate the role of a state or local law enforcement agency on a
casc-by-case basis. Thcrefore, prosecutors should make sure they understand the law in their
circuit and their office's practice regarding discovery in cases in which a state or local agency
participated in the investigation or on a task force that conducted the investigation.
Prosecutors arc encouraged to err on the side of inclusiveness when identifying the
members of the prosecution tcam for discovery purposes. Carefully considered eOorts to locate
discoverable information are more likely to avoid future litigation over Brady and GigUo issues
and avoid surprises at trial.
Although the considerations set forth above generally apply in the context of national
security investigations and prosecutions, special complcxities arisc in that context. Accordingly,
the Department expects to issue additional guidance for such cases. Prosecutors should begin
considering potential discovcry obligations early in an investigation that has national security
implications and should also carefully evaluate their discovery obligations prior to filing charges.

 MEMORANDUM FOR DEPARTMENT PROSEC TORS
SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

Page 4

This evaluation should consider circuit and district precedent and include consultation with
national security experts in their own offices and in the National Security Division.

B. \,yhat to Review
To ensure that all discovery is disclosed on a timely basis, generally all potentially
discoverable material within the custody or control of the prosecution team should be revicwed. 2
The review process should cover the follo\\~ng areas;
I. The Investigative AgencY's Files: With respect to Dcpanmcni of Justice law
enforcement agencies, with limited exceptions/the prosecutor should be granted access 10 the
substantive case file and any other file or document the prosecutor has reason to believe may
contain discoverable information related to the mancr being prosecuted. 4 Therefore, the
prosecutor can personally review the file or documents or may choose to request production of
potentially discoverable materials from the case agents. With respect to outside agencies, the
prosecutor should request access to files and/or production of all potentially discoverable material.
The investigative agency's entire investigative file, including documents such as FBI Electronic
Communications (ECs), inserts, emails, etc. should be reviewed for discoverable information. If
such information is contained in a document that the agency deems to be an "internal" document
such as an email.aninsert. an administrative document, or an EC, it may not be necessary to
produce the internal document, but it will be necessary to produce all of the discoverable
information contained in it. Prosecutors should also discuss with the investigative agenc)' whether
files from other investigations or non-investigative files such as confidential source files might
conlain discoverable information. Those additional files or relevant portions thereof should also
be reviewed as necessary.

2. Confidentiallnfomlant (CIVWitness (CWVHuman Source (CHSVSource (CS) Files:
The credibility of cooperating witnesses or informants will always be at issue if they testify during
a trial. Therefore, prosecutors are entitled to access to the agency file for each testifying CI, CW,
CHS, or CS. Those files should be reviewed for discoverable information and copies made of
relevant portions for discovery purposes. The entire informant/soUTce file, not just the portion
relating to the current case, including all proffer, immunjty and other agreements, validation

2

How to conduct the review is discussed below.

Exceptions to a prosecutor's access to Department law enforcement agencies' files are
documented in agency policy, and may include, for example. access to a non-testifying source's
files.
l

4 NOlhing in this guidance alters the Department's Policy Regarding the Disclosure to
Prosecutors of PotentiaJ Impeachment Infonnation Concerning Law Enforcement Agency
Witnesses contained in USAM §9-S.1 00.

 MEMORANDUM FOR DEPARTMENT PROSECUTORS

Page 5

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery
assessments, payment information, and other potential witness impeachment infom13tion should
be included within this review.
If a prosecutor believes that the circumstances of the case warrant review of a 11011testifying source's file, the prosecutor should follow the agency's procedures for requesting the
review of such a file.
Prosecutors should take steps to protccllhc non-discoverable, sensitive information found
within a el, CW, CHS, or CS file. Further, prosecutors should consider whether discovery
obligations arising from the review orCI, CW, CHS. and CS files may be fully discharged while
beneT protecting government or witness interests such as security or privacy via a summary letter
to defense counsel rather than producing the record in its entirety.
Prosecutors must always be mindful of security issues that may arise with respect to
disclosures from confidential source files. Prior to disclosure, prosecutors should consult with the
investigative agency to evaluate any such risks and to develop a strategy for addressing those risks
or minimizing them as much as possible, consistenl with discovery obligations.
3. Evidence and Information Gathered During the Invesligation: Generally, all evidence
and informalion gathered during the investigation should be reviewed, ineluding anything
obtained during searches or via subpoenas, etc. As discussed more fully below in Step 2, in cases
involving a large volume of potenlially discoverable information, prosecutors may discharge their
disclosure obligalions by choosing to make the voluminous information available to the defense.
4. Documents or Evidence Gathered bv Civil Atlorneys and/or Regulatorv Agency in
Parallel Civillnvestillations: If a prosecutor has determined that a regulatory agency such as the
SEC is a member of the prosecution team for purposes of defining discovery obligations, thaI
agency's files should be reviewed. Of course, if a regulatory agency is nol part of the prosecution
team but is conducting an administrative investigation or proceeding involving the same subject
matter as a criminal investigation, prosecutors may very well want to ensure that those files are
reviewed not only to locate discoverable information but to locate inculpatory infoOl1ation lhat
may advance lhe criminal case. Where there is an ongoing parallel eivil proceeding in which
Department civil attorneys arc participating, such as a qui lam case. the civil case files should also
be reviewed.
5. Substantive Case-Related Communications: "Substantive" case-related
communications may contain discoverable information. Those communications that contain
discoverable infornlation should be maintained in the case file or otherwise preserved in a manner
that associates them with the case or investigation. "Substantive" case·relaled communications
arc most likely 10 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. Such communications may be memorialized in emails, memoranda, or notes.

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Page 6

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery
"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. Communications
involving case impressions or investigative or prosecutive strategies without more would not
ordinarily be considered discoverable, but substantive case-related communications should be
reviewed carefully to dctennine whether all or pan ora communication (or the information
contained therein) should be disclosed.
Prosecutors should also remember that with few exceptions (see, e.g., Fed.R.Crim.P.
16(a)(I)(B)(ii)), the fonnat of the information does not determine whether it is discoverable. For
example. material exculpatory infonnation that the prosecutor receives during a conversation with
an agent or a witness is no less discoverablc than if that same infonnation wcre contained in an
email. When the discoverable information contained in an email or other communication is fully
memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure
of the report of interview or other document(s) will ordinarily satisfy the disclosure obligation.

6. Potential Giglio Information Relating 10 Law Enforcement Witnesses: Prosecutors
should have candid conversations with the federal agents with whom they work regarding an)'
potential Giglio issues, and they should follow the procedure established in USAM §9-5.100
whenever necessary before calling the law enforcement employee as a witness. Prosecutors
should be familiar with circuit and district court precedent and local practice regarding obtaining
Giglio information from state and localla\\' enforcement officers.

7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and
Fed.R.Evid. 806 Dec!arants: All potential Giglio information known by or in the possession of
the prosecution team relating to non-law enforcement witnesses should be gathered and reviewed.
That information includes, but is not limited to:
•

Prior inconsistent statements (possibly including inconsistent attorney proffers, see
United States \I. Triumph Capital Group, 544 F.3d 149 (2d Cif. 2008))
Statements or reports reflecting witness statement variations (see below)
Benefits provided to witnesses including:
Dropped or reduced charges
Immunity
Expectations of downward departures or motions for reduction of sentence
Assistance in a state or local criminal proceeding
Considerations regarding forfeiture of assets
Stays of deportation or other immigration status considerations
$-Visas
Monetary benefits
Non-prosecution agreements

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SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery
Letters to other law enforcement officials (e.g. stale prosecutors, parole boards)
setting forth the extent of a witness's assistance or making substantive
recommendations on the witness's behalf

Relocation assistance
•

•

Consideration or benefits to culpable or at risk third-parties
Other knO\\11 conditions that could affect the witness's bias such as:
Animosity toward defendant
Animosity toward a group of which the defendant is a member or with which the
defendant is affiliated
Relationship with victim
Known but uncharged criminal conduct (that may provide an incentive to curry
favor with a prosecutor)
Prior aCIS under Fed.R.Evid. 608
Prior convictions under Fed.R.Evid. 609
Known substance abuse or mental health issues or other issues that could affect the
witness's ability to perceive and recall events

8. Lnfomlation Obtained in Witness Interviews: Although not required by law, generally
speaking, witness interviews s should be memorialized by the agenl. 6 Agent and prosecutor notes
and original recordings should be preserved, and prosecutors should confiml with agents that
substantive interviews should be memorialized. When a prosecutor participates in an interview
with an investigative agent, the prosecutor and agent should discuss note·taking responsibilities
and memorialization before the interview begins (unless the prosecutor and the agent have
established an understanding through prior course of dealing). Whenever possible, prosecutors
should not conduct an interview without an agent present to avoid the risk of making themselves a
witness to a statement and being disqualified from handling the case ifthc statement becomes an
issue. If exigent circumstances make it impossible to secure the presence of an agent during an
interview, prosecutors should try to have another office employee present. Interview memoranda
of witnesses expected to testify, and of individuals who provided relevant infomlation but are not
expected to testify, should be reviewed.

S "Interview" as used herein refers to a formal question and answer session with a
potential witness conducted for the purpose of obtaining information pertinent to a matter or
case. It docs not include conversations with a potential witness for the purpose of scheduling or
attending to other ministerial matters. Potential witnesses may provide substantive infonnation
outside of a formal interview, however. Substantive, case·related communications are addressed
abovc.

610 those instanccs in which an interview was audio or video recorded, further
memorialization will generally not be necessary.

 MEMORANDUM FOR DEPARTME T PROSECUTORS
SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

Page 8

3. Witness Statement Variations and the Duty to Disclose: Some witnesses'
statements will vary during the course of an interview or investigation. For example, they
may initially deny involvement in criminal activity, and the information they provide may
broaden or change considerably over the course of time, especially irthere are a series of
debricfings that occur over several days or weeks. Material variances in a witness's
statements should be memorialized, even if they arc within the same interview, and they
should be provided 10 the defense as Giglio information.

b. Trial Preparation Meetings with Witnesses: Trial preparation meetings with
witnesses generally need not be memorialized. However, prosecutors should be
particularly attuned 10 new or inconsistent infonnation disclosed by the witness during a
pre-trial witness preparation session. New infonnation that is exculpatory or impeachment
infonnation should be disclosed consistent with the provisions of US AM §9-5.001 even if
the information is first disclosed in a witness preparation session. Similarly, if the new
information represents a variance from the witness's prior statements, prosecutors should
consider whether memorialization and disclosure is necessary consistent with the
provisions of subparagraph (a) above.
c. Al!ent Notes: Agent notes should be reviewed if there is a reason to believe that the
notes are materially different from the memorandum, if a written memorandum was not
prepared, ifthc precise words used by the witness are significant, or if the witness disputes
the agent's account of the interview. Prosecutors should pay particular attention to agent
notes generated during an interview of the defendant or an individual whose statement
may be attributed to a corporate defendant. Such notes may conlain information Ihat must
be disclosed pursuant to Fed.R.Crim.P. 16(a)(I)(A)-(C) or may themselves be
discoverable under Fcd.R.Crim.P. 16(a)(I)(8). See, e.g., United Slates v. Clark,
385 F.3d 609, 619-20 (6" Cir. 2004) and United Slates v. Vaffee, 380 F.Supp.2d II, 12-14
(D. Mass. 2005).

Step 2: Conducting thc Rc\'icw
Having gathered the information described above, prosecutors must ensure that the
material is revicwed to idcntify discoverable infomlation. It would be preferable if prosecutors
could review the infonnalion themselves in every case, but such review is not always feasible or
necessary. The prosecutor is ultimately responsible for compliance with discovery obligations.
Accordingly, the prosecutor should develop a process for review of pertinent infom13tion to
ensure that discoverable infonnation is identificd. Because the responsibility for compliance with
discovery obligations rests with the prosecutor, the prosecutor's decision about how to conduct
this review is controlling. This process may involve agents, paralegals, agency counsel, and
computerized searches. Although prosecutors may delegate the process and set forth criteria for
identifyingpolenlially discoverable information, prosecutors should not delegate the disclosure
detennination itself. In cases involving voluminous cvidencc obtained from third parties,

 MEMORANDUM FOR DEPARTMENT PROSECUTORS

Page 9

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery
prosecutors should consider providing defense access to the voluminous documents to avoid the
possibility that a well-intentioned review process nonetheless fails to identify material
discoverable evidence. Such broad disclosure may not be feasible in national security cases
involving classified information.

Slep 3: Making Ihe Disclosures
The Department's disclosure obligations are generally set forth in Fed.R.Crirn.P. 16 and
26.2, 18 U.S.C. §3500 (I he Jencks Act), Brady, and Giglio (collectively referred to herein as
"discovery obligations"). Prosecutors must familiarize themselves with each crthesc provisions
and controlling casc law that intcrprets these provisions. In addition. prosecutors should be aware
that Section 9-5.00 I details the Department's policy regarding the disclosure of exculpatory and
impeachment infonnation and provides for broader disclosures than required by Brady and Giglio.
Prosecutors are also encouraged 10 provide discovery broader and more comprehensive than the
discovery obligations. Ir a prosecutor chooses this course, the defense should be advised that the
prosecutor is electing to produce discovery beyond what is required under the circumstances of
the case but is not committing to any discovery obligation beyond the discovery obligations sct
forth above.
A. Considerations Regarding the Scope and Timing of the Disclosures: 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 detennination of the scope of appropriate discovery is in error.
Prosecutors are encouraged to provide broad and early discovery consistent with any
countervailing considerations. But when considering providing discovery beyond that
required by the discovery obligations or providing discovery sooner Ihan required,
prosecutors should always consider any appropriate countervailing concerns in the
particular case, including, but not limited to: protecting victims and witnesses from
harassment or intimidation; protecting the privacy interests of witnesses; protecting
privileged infonnation; protecting the integrity of ongoing investigations; prolecting the
trial from efforts at obstruction: protecting national security interests; investigative agency
concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any
applicable legal or evidentiary privileges; and other strategic considerations that enhance
thc likelihood of achicving a just result in a particular casco In most jurisdictions, reports
of intcrview (ROls) of testifying witnesses are not considcred Jencks material unless the
report reflects the statement of the witness substantially vcrbatim or the witness has
adopted it. The Working Group detennincd that practices diffcr among the USAOs and
the components regarding disclosure of ROTs of testifying witnesses. Prosecutors should
be familiar with and comply with the practice of their offices.

Proseculors should ncver describe the discovery being provided as "open file." Even if the
prosecutor intends to provide expansive discovery, it is always possible that something

 MEMORANDUM FOR DEPARTMENT PROSECUTORS

Page 10

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery
will be inadvertently omitted from production and the prosecutor will then have
unintentionally misrepresented the scope of materials provided. Furthermore, because the
concept of the "file" is imprecise, such a representation exposes the prosecutor to broader
disclosure requirements than intended or to sanction for failure to disclose documents, e.g.
agent notes or internal memos, that the court may deem to have been part of the "file."
When the disclosure obligations are not clear or when the consideralions above conflict
with the discovery obligations, prosecutors may seek a protective order from the court
addressing the scope, timing, and form of disclosures.
B. Timing: Exculpato!)' information, regardless of whether the information is
memorialized, must be disclosed to the defendant reasonably promptly after discovery.
Impeachment infonnation, which depends on the prosecutor's decision on who is or may
be called as a government witness, will typically be disclosed at a reasonable time before
trial to allow the trial to proceed efficiently. See USAM §9·S.001. Section 9·S.001 also
notes, however, that witness security, national security. or other issues may require that
disclosures of impeachment infonnation be made at a time and in a manner consistent with
the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law
in their circuit and district governing disclosure obligations at various stages of litigation,
such as pre-trial hearings, guilty pleas, and sentencing.

Prosecutors should consult the local discovery rules for the district in which a case has
been indicted. Many districts have broad, automatic discovery rules that require Rule 16
materials to be produced without a request by the defendant and within a specified time
frame, unless a court order has been entered delaying discovery, as is common in complex
cases. Prosecutors must comply with these local rules, applicable case law. and any final
court ordcr regarding discovery. In the absence of guidance from such local rules or court
orders, prosecutors should consider making Rule 16 materials available as soon as is
reasonably practical but must make disclosure no later than a reasonable time before trial.
In deciding when and in what format to provide discovery. prosecutors should always
consider security concerns and the other factors set forth in subparagraph (A) above.
Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(I)(E) materials in a
manner that triggers the reciprocal discovery obligations in Fcd.R.Crim.P. 16(b)(I).
Discovery obligations are continuing, and prosecutors should always be alert to
developments occurring up to and through trial of the case that may impact their discovery
obligations and require disclosure of infonnation that was previously not disclosed.
C. Form of Disclosure: There may be instances when it is not advisable to tum over
discoverable information in its original foml, such as when the disclosure would create
security concerns or when such information is contained in altorney notes, internal agency
documents, confidential source documents, Suspicious Activity Reports, etc. If

 MEMORANDUM FOR DEPARTMENT PROSECUTORS

Page II

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery
discoverable infomlation is not provided in its original fonn and is instead provided in a
letter to defense counsel. including particular language, where pertinent, prosecutors
should take great care to ensure that the full scope of pertinent infomlation is provided [0
the defendant.

Step 4: Making a Record
One of the most important steps in the discovery process is keeping good records
regarding disclosures. Prosecutors should make a record of when and how infom13tion is
disclosed or otherwise made available. While discovery matters are often the subject of Ii ligation
in criminal cases, keeping a record of the disclosures confines the litigation to substantive matters
and avoids time-consuming disputes about what was disclosed. These records can also be critical
when responding to petitions for post-conviction relief, which are often filed long after the trial of
the case. Keeping accurate records of the evidence disclosed is no less important than the other
steps discussed above, and poor records can negate all of the work that went into taking the first
three steps.
Conclusion
Compliance with discovery obligations is important for a number of reasons. First and
foremost, however, such compliance will facilitate a fair andjusl result in ever)' case, which is the
Department's singular goal in pursuing a criminal prosecution. This guidance does not and could
not answer every discovery question because those obligations are often fact specific. However,
prosecutors have at their disposal an array of resources intended to assist them in evaluating their
discovery obligations including supervisors, discovery coordinators in each office, the
Professional Responsibility Advisory Office, and online resources available on the Department's
intranct website, not to mention the experienced career prosecutors throughout the Department.
And, additional resources arc being developed through efTorts that will be overseen by a full-time
discovery expert who will be detailed to Washington from the field. By evaluating discovery
obligations pursuant to the methodical and thoughtful approach set forth in this guidance and
taking advantage of available resources, prosecutors are more likely to meet their discovery
obligations in every case and in so doing achieve ajust and final result in every criminal
prosecution. Thank you very much for your cnorts to achieve those most important objectives.

 MEMORANDUM FOR THE ASSOCIATE ATTORNEY GENERAL AND
THE ASSISTANT ATTORNEYS GENERAL FOR THE
CRIMINAL DIVISION
NATIONAL SECURITY DIVISION
CIVIL RIGHTS DIVISION
ANTITRUST DIVISION
ENVIRONMENTAL AND NATIONAL RESOURCES DIVISION
TAX DIVISION
ALLUNI~TATESATTORNEYS
Gary G. Grindler
Acting Deputy Atto

eneral

Policy and Procedures Regarding Discoverable Information in the Possession
of the Intelligence Community or Military in Criminal Investigations
National security and other cases 1 that may rely on or relate to classified information in
the possession of the intelligence community (IC)2 or other information in the possession of the
military3 pose unique discovery challenges. The Department must handle these cases properly in
1 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 drug cases, human trafficking cases, money laundering
cases, and organized crime cases. In appropriate cases, prosecutors are encouraged to make a general practice of
discussing with the agents on the prosecution team whether they have a specific reason to believe that the IC may be
in possession of information that relates to their case. If any member of the prosecution team-including
a
supervisor involved in decision-making in the case-has specific reason to believe that the IC is in possession of
information that relates to their case, regardless of the type of case, the prosecutors should follow the procedures set
forth in this Policy.

The lC includes the Office of the Director of National Intelligence; the 'Central Intelligence Agency; the National
Security Agency; the Defense Intelligence Agency; the National Geospatial-Intelligence Agency; the National
Reconnaissance Office; the other offices within the Department of Defense (DoD) for the collection of specialized
national foreign intelligence through reconnaissance programs; and the intelligence and counterintelligence
components of the Department of State, Federal Bureau of Investigation, Drug Enforcement Administration,
Department of Treasury, Department of Energy, Department of Homeland Security, and the respective military
services. Exec. Order No. 12333 § 3.5(h)(2008).
2

National security cases may also require collaboration with or assistance from DoD's non-IC and non-law
enforcement components. For instance, DoD's non-IC, non-law enforcement components may have arrested or
detained the defendant, or conducted a raid that produced evidence or other infonnation relied on in the criminal

3

case.

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
order to prosecute defendants accused of criminal conduct, safeguard defendants' rights, protect
classified and other national security information, and avoid imposing an undue burden on the IC
and military. This policy provides guidance to ensure that the Department effectively meets
these important obligations.4
Due to the risks associated with the disclosure of national security information,
prosecutors often will not be able to follow the policy presumptions that the Department has
adopted in other contexts in favor of disclosing more information than the law requires or
disclosing it earlier than the law requires.5 Prosecutors should in all cases, of course, disclose in
discovery information to which the defense is entitled by law, but national security interests will
often militate against disclosing more than the law requires or disclosing it earlier than the law
requires in national security cases. The Classified Information Procedures Act, 18 U.S.C.
Appendix 3 (CIP A) sets forth procedures for protecting national security information, and
prosecutors who handle national security cases should be fully familiar with CIP A. Moreover,
disclosure of classified information, by definition, poses a risk to national security.6 Disclosure
of unclassified information relating to a national security investigation may also pose a risk to
national security if, for instance, the information reveals investigative steps taken, investigative
techniques or trade craft used, or the identities of witnesses interviewed during a national security
investigation.
Accordingly, decisions regarding the scope, timing, and form of discovery disclosures in
national security cases must be made with these risks in mind, in consultation with the National
Security Division, the Intelligence Community, and law enforcement agencies, taking full account
of the need to protect against unnecessary disclosure of classified or unclassified information
relating to national security investigations. Consistent with this Policy, the United States
Attorney's Offices and Department of Justice litigating components should specifically state in
their office-wide discovery policies that discovery in national security cases or cases involving

The guidance set forth herein is not intended to create or confer any rights, privileges, or benefits in any matter,
case, or proceeding, see United States v. Caceres, 440 U.S. 741 (1979), and does not have the force of law or a
Department of Justice directive.
4

The Department has adopted a general policy preference in non-national security cases in favor of "broad
disclosure," beyond what may be required by the Constitution and the law, but it has also recognized that adhering
to this policy may not be feasible or advisable in national security cases where "special complexities" arise. See
Memorandum for Department Prosecutors from Deputy Attorney General David W. Ogden, "Guidance for
Prosecutors Regarding Criminal Discovery," at 9 (Jan. 4, 2010) ("[W]hen considering providing discovery beyond
that required by the discovery obligations
, prosecutors should always consider any appropriate countervailing
concerns in the particular case, including
protecting national security interests."); id ("[s]uch broad disclosure
may not be feasible in national security cases."). See also USAM § 9-5.001 ("The policy is intended to ensure
timely disclosure of an appropriate scope of exculpatory and impeachment information so as to ensure that trials are
fair. The policy, however, recognizes that other interests, such as witness security and national security, are also
critically important ... , and that if disclosure prior to trial might jeopardize these interests, disclosure may be
delayed or restricted (e.g. pursuant to the Classified Information Procedures Act"».
5

See Exec. Order No. 12,958 at § 1.2 (2009) (information may be classified only if its disclosure reasonably could
be expected to cause damage to the national security).

6

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
classified information must account for the special considerations that apply to those cases.
Discovery policies should specify that prosecutors handling such cases may need to deviate from
the component's general discovery policies in certain circumstances, based on an individualized
assessment of the specific factors in the case and in a manner that is consistent with the law.

Under the Supreme Court holding in Brady v. Maryland, 373 U.S. 83 (1963),
prosecutors have a duty to disclose any information that is favorable to the defense and material
either to guilt or punishment. !d. at 88. Information favorable to the defense includes evidence
which "would tend to exculpate [the defendant] or reduce the penalty," see Brady v. Maryland,
373 U.S. 83, 87 (1963), and evidence regarding the reliability or credibility ofa witness, see
Giglio v. United States, 405 U.S. 150, 154-55 (1972). In addition, prosecutors have an
obligation to search for and disclose any written or recorded statements ofthe defendant within
the government's possession, custody, or control, upon the defendant's request, see Fed. R.
Crim. P. 16, and any written or recorded statement of a witness called by the government to
testify at a criminal proceeding, see 18 U.S.c. § 3500; Fed. R. Crim. P. 26'.2. The information
described in this paragraph that the government has a duty to disclose is referred to collectively
herein as "discoverable information."
In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court held that in order to satisfy
the disclosure obligation, prosecutors have a "duty to learn" of information favorable to the
defense known to others "acting on the government's behalf in the case." Id. at 437.7 To apply
Kyles in particular cases, lower courts have had to determine the circumstances under which
government personnel or agencies are deemed to be acting on the government's behalf and
thereby fall within the scope of the government's duty to search. The analysis they have
developed is fact-specific, depending on factors such as the actions taken by investigators,
prosecutors, and the other agencies and departments that have played a role in the case.
Evaluatin~ the duty to search8 may be particularly complicated in cases that involve
national security. National security cases often arise out of, or are concurrent with, the IC's
efforts to collect intelligence on threats to national security. In such situations, the resources of
both the IC and law enforcement may be focused on the same individuals with varying degrees
of coordination: the IC may work closely with law enforcement to develop the case; it may
respond to specific requests from law enforcement for relevant information; or it may simply
provide a tip or lead to law enforcement but remain otherwise uninvolved in the development of
the criminal case. In addition, different IC components may be involved in the investigation to
See also Strickler v. Greene, 527 U.S. 263 (1999) (holding that the prosecution has a duty to disclose to the defense
any exculpatory evidence known to a police investigator, even if it had not been shared with the prosecutor).

7

8 The government's
"duty to search" is intended to protect the due process right recognized by Brady and its
progeny to receive any exculpatory, material information in the possession of the prosecution. We are aware of no
case in which a court has found that failure to conduct a search violates due process even if the search would have
uncovered no discoverable information.

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
varying degrees. The government may decide to use some intelligence in support of the criminal
case, but it may also decide that other intelligence is too sensitive to use without risking the
disclosure of important sources or methods of intelligence collection. The government must
consider the unique facts and competing interests of each national security case in order to
determine whether it has a duty to search and, if it does, the scope of such a search.
There is a dearth of published case law regarding the contours of the government's duty
to search in national security cases. Prosecutors must therefore attempt to apply the duty to
search case law developed in ordinary criminal cases to national security cases, drawing
principled distinctions where necessary to address the unique challenges and interests involved in
the national security context. Moreover, the case law regarding discovery obligations in ordinary
criminal cases is itself far from uniform; there are substantial variations from circuit to circuit,
and prosecutors are encouraged to discuss the law or practice in their particular district or circuit
with NSD. Applying the existing case law provides some general guidance to prosecutors
handling national security cases regarding when there clearly is - and clearly is not - a duty to
search.

Case law indicates that the government has a duty to search the relevant files of an IC or
military component that has taken steps that significantly assist the prosecution. For example, if an
IC or military component actively participates in the overseas aspects of a criminal investigation;
captures the suspect; detains or interviews the suspect or a witness that the prosecution uses in its
criminal case; or provides criminal investigators with inculpatory information that establishes the
factual basis for a warrant or charging instrument, the prosecution will likely have a duty to search
the files of that IC or military component.
In addition, case law indicates that the government has a duty to search when the
prosecution knows or has a specific reason to know10 of discoverable information in the possession
of the IC or military; has or reasonably should have searched a database accessible to the
prosecution team that is maintained by the IC or military; or is responding to a specific and
reasonable request for information from a defendant. For instance, the government may have a
duty to search:
•

Database Searches: when the prosecution team has searched Intelink or another IC
database for background or inculpatory information that may be relevant to its case. The
search of a database for inculpatory material will generally trigger an obligation to search

10 Case law provides little guidance regarding how specific the government's
belief must be in order to trigger a duty
to search. Prosecutors should not assume that their knowledge ofIC activities or collections is not sufficiently
specific to trigger a duty to search; rather, prosecutors are encouraged to raise any questions they have in this regard
with NSD.

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
that same database for discoverable information. 1 1 Moreover, if the documents reviewed
create a specific reason to believe that the IC or military is in possession of additional
discoverable material, there likely will be a duty to search the underlying files of the
relevant component of the IC or military.
•

Close Cooperation with an IC Component: when an IC component shares the results of
interviews of the suspect with the prosecution team or actively participates in the criminal
investigators' interviews of the suspect while the suspect is in the custody of a foreign
government. 12

•

DOD Custodian: when DoD captures the suspect in a zone of active conflict (or during
the course of repelling or responding to an act of piracy) and detains and interrogates the
suspect before transferring him to the United States for prosecution. 13 However, the fact
that some components of DoD were involved in the capture, detention, and interrogation
of the defendant does not require the prosecution to search all of DoD for potentially
discoverable material. 14

•

Joint Terrorism Task Force (JTTF): when the suspect is investigated by a JTTF. For
instance, if the JTTF in Seattle investigated the suspect, the government must search for

11 Cj United States v. Lujan, 530 F.Supp.2d 1224, 1259 (D.N.M. 2008) (concluding that "the United States has a
duty to seek out Brady information in FBI and other readily accessible databases."); United States v. Perdomo, 929
F.2d 967,971 (3d Cir. 1991) ("[N]on-disclosure is inexcusable where the prosecution has not sought out information
readily available to it."). It is also possible that a duty to search a particular database will arise even if the
prosecution team has not used it during the course of its investigation if the database is deemed to be a readily
available resource that the prosecution would be expected to search in such a case. See, e.g., United States v. Auten,
632 F.2d 478,481 (5th Cir. 1980) ("That the prosecutor, because of the shortness of time, chose not to run an FBI or
NCIC check on the witness, does not change 'known' information into 'unknown' information within the context of
the disclosure requirements.").
12 Cj, e.g., United States v. Risha, 445 F.2d 298,306 (3d Cir. 2006) (holding that a "Brady violation may be found
despite a prosecutor's ignorance of impeachment evidence ... when the withheld evidence is under control of a state
instrumentality closely aligned with the prosecution " .") (citation omitted); In re Sealed Case, 185 F.3d 887, 896
(D.C. Cir. 1999) ("[P]rosecutors in this circuit are responsible for disclosing Brady information contained in
[Metropolitan Police Department] files, given the close working relationship between the Washington metropolitan
police and the U.S. Attorney for the District of Columbia.") (citation omitted).
13 See, e.g., United States v. Wilson, 237 F.3d 827, 832 (7th Cir. 2001) (imputing U.S. Marshall Service's knowledge
regarding a witness in the WitSec program to the prosecution team; "it is impossible to say in good conscience that
the U.S. Marshal's Service was not 'part of the team' that was participating in the prosecution, even if the role of the
Marshal's Service was to keep the defendants in custody rather than to go out on the streets and collect evidence").
14 See, e.g., United States v. Pelullo, 399 F.3d 197,218 (3d Cir. 2005) (fmding no duty to search a division of the
Department of Labor (DOL) not involved with the prosecution; the fact "that other agents in the DOL participated in
this investigation does not mean that the entire DOL is properly considered part of the prosecution team"); United
States v. Upton, 856 F. Supp. 727, 750 (E.D.N.Y. 1994) (finding no duty to search the entire Federal Aviation
Administration (FAA); "although the FAA provided two inspectors to assist in the investigation, the agency itself
did not participate in the criminal investigation or prosecution").

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
discoverable information in the possession of the Seattle JTTF.15 The prosecution has no
obligation, however, to search each agency participating in the JTTF or to search other
JTTFs unless there is a specific reason to believe that a particular agency or JTTF
possesses discoverable information or assisted in the investigation ofthe case.16
•

Participation of Main Justice Supervisors: when Department of Justice officials who
advise on or are involved in decision-making regarding the defendant's capture, detention
(including pre-trial law of war detention), or prosecution, they may be considered part of
the prosecution team, therebl triggering a duty to search for discoverable information in
their possession or control. 1 Accordingly, when an NSD attorney is assigned to work
with a United States Attorney's Office on a case, that attorney and his or her supervisors
involved in decision-making in the case will be part of the prosecution team.

The government does not have a duty to search an IC or military component that was not
involved in the investigation or prosecution unless there is a specific reason to believe that the IC
or military possesses discoverable material. The government does not have a duty to search in
response to an overbroad request by the defendant that amounts to a "fishing expedition," i.e., a
speculative, unsubstantiated assertion by the defendant that an IC or military component may
have discoverable information. The government generally will not have a duty to search:
•

General Knowledge of Collection Program: when the prosecution team is generally
aware of intelligence collection programs, but has no specific reason to believe that the
IC possesses information on the suspect or any of the witnesses the government intends
to use at trial. For instance, a suspect is stopped crossing the border from Canada by
customs officials. A search of his car reveals precursor chemicals and bomb components
along with jihadist literature. Under questioning, the suspect admits that he has been
inspired by al Qaeda and that he planned to detonate the explosives at the Los Angeles
International Airport. The fact that prosecutors are generally aware that the Central

15 See, e.g., United States v. Burnside, 824 F. Supp. 1215, 1253 (N.D. Ill. 1993) ("[T]he fact that the ATF agents and
the Chicago police officers who [worked on the cases] were aware of the Brady material makes knowledge of the
Brady material attributable to the government for Brady purposes.").
16 See, e.g., United States v. Locascio, 6 F.3d 924,949 (2d Cir. 1993) (fmding that there was no obligation to
disclose impeachment evidence in a report prepared by FBI agents who were not part of the prosecution team but
were investigating other criminal activity involving the same witness; "[e]ven assuming the reports' materiality,
there is no evidence that the prosecution team in the instant case was aware of the reports that have subsequently
come to light.").
17 See, e.g., United States v. Ghailani, 687 F. Supp. 2d 365 (S.D.N.Y 2010). In evaluating the defendant's Rule 16
request, the court concluded that Department of Justice officials who "participated in advising on or making the
decisions" to hold Ghailani in a CIA detention center, transfer him to Guantanamo Bay, prosecute him in a military
commission, and subsequently transfer him to the Southern District of New York for prosecution in an Article III
court were part of the "the government" for Rule 16 purposes and were obligated to produce and disclose relevant
documents, even if they were not otherwise involved in prosecuting the criminal case. Id. at 372.

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
Intelligence Agency (CIA) collects intelligence regarding al Qaeda members and
affiliates does not give rise to a duty to search the CIA's files unless the CIA has
provided the prosecution team with information relevant to the case or the prosecution
team has a specific reason to believe that the CIA possesses information on the suspect or
the statements of a government witness. The fact that the suspect might be an al Qaeda
affiliate and that the CIA might have relevant information does not create an obligation to
search when the information has not been relied on or used in any way in the
government's investigation or case.18 (That said, on these facts, prosecutors will
undoubtedly wish to do a search to look for inculpatory material; such a search will then
trigger an obligation to also look for discoverable information among the material that is
searched.)
•

Foreign Government Custody; when the defendant is held and interrogated by a foreign
government before being transferred to United States custody and U.S. officers did not
actively participate in the interrogations.19 If, however, a foreign government has
provided the prosecution team with information relevant to the case, prosecutors have an
obligation to search the material provided to them for potentially discoverable documents
or information.

•

Tips or Leads: when the IC or the military provides to law enforcement simple lead
information with respect to which law enforcement then undertakes independent
investigative steps, is otherwise uninvolved in the case, and the prosecution team has no
specific reason to believe that the entity that provided the information is in possession of
additional discoverable information,zo For instance, if the IC notifies law enforcement

18 See, e.g., United States v. McDavid, No. CR S-06-35 MCE, 2007 WL 926664, at *3 (E.D. Cal. Mar. 27,2007)
("Although defendant discusses the NSA's activities at length, he has failed to link them to this prosecution or to
make any sort of showing that the prosecutor has knowledge of and access to any results of the NSA's
surveillance."); United States v. Morris, 80 F.3d 1151, 1169 (7th Cir. 1996) ("Brady did not require the government
here to seek out allegedly exculpatory information in the hands ofthe Office of Thrift Supervision ('oTS'), the
Securities Exchange Commission ('SEC'), or the Internal Revenue Service ('IRS') when it had been unaware of the
existence of that information [and] none of those agencies were part of the team that investigated this case or
participated in its prosecution ... "). But see United States v. McVeigh, 854 F.Supp. 1441, 1450 (D.Colo. 1997)
("The lawyers, appearing on behalf of the United States, speaking for the entire government, must inform
themselves about everything that is known in all of the archives and all of the data banks of all of the agencies
collecting information which could assist in the construction of alternative scenarios to that which they intend to
prove at trial.") The McVeigh court, however, ultimately rejected defendant's request to require that the prosecution
forward broad-based discovery requests to intelligence agencies based in part on the conclusion that the defendant's
discovery requests were not sufficiently specific so as to demonstrate what was being sought and how it was
material to the defense.

19 United States v. Reyeros, 537 F.3d 270, 283 (3d Cir. 2008) (froding that there was no duty to search for or disclose
documents in the possession of the Columbian government merely because Colombian officials permitted U.S.
agents to interview the defendant while he was in Colombian custody and participated in ajudicial proceeding that
resulted in the defendant's extradition); id. (emphasizing as a key fact that there "was no joint investigation by the
United States and Colombian governments regarding the events alleged in the Indictment").
20 See, e.g" United States v. Ferguson, 478 F. Supp. 2d 220,239-40
(D. Conn. 2007) (finding no duty to search the
New York Attorney General's files: "The 'mere fact that the Government may have requested and received

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
that they may want to watch the comer of Fifth and Main Streets at 5:00 p.m., and
officers observe a drug deal at that location and time, there is no obligation to search the
IC agency that provided that simple lead for discoverable information. The prosecution
team is, however, obliged to review for potential disclosure any discoverable information
included in the material that it has received?!

A number of federal departments and agencies include both intelligence and law
enforcement components. The duty to search the files of such departments and agencies extends
only to those components that participated in or provided advice regarding the criminal
investigation or that the prosecution team has a specific reason to believe possess discoverable
information. If the intelligence component of such an agency has not been involved in the case
and there is no specific reason to believe it possesses discoverable information, there is no dut~
to search that component merely because another part of the same agency assisted in the case. 2

As the above discussion suggests, the determination whether there is a duty to search an
IC or military component for discoverable information relating to a national security case is
complex and fact-specific. Moreover, even where there is a clear duty to search, determining the
scope ofthat obligation - whether it extends to an entire department or agency, or just to certain
components of a department or agency - depends on the unique facts of the case.
In light ofthese complexities, prosecutors should seek guidance from the National
Security Division (NSD) whenever there is the possibility that they have a duty to search an IC
or military component in a national security case. Early coordination with NSD will ensure that
the Department takes consistent litigation positions across various federal districts and will
facilitate coordination with relevant IC components.

A "prudential search" is a search of the files of an IC agency, usually prior to indictment,
undertaken because the prosecution team has a specific reason to believe that the agency's files
may contain classified information that could affect the government's charging decisions. A
documents from [another agency] in the course of its investigation does not convert the investigation into a joint
one.''') (citation omitted); United States v. Chalmers, 410 F. Supp. 2d 278,290 (S.D.N.Y. 2006) (holding that
federal entities do not become part of the prosecution team - thereby triggering the attendant duty to search and
disclose - merely because they "made documents available to the prosecution").
21See Poindexter, 727 F. Supp. at 1478 ("[A] prosecutor who has had access to documents in other agencies in the
course of his investigation cannot avoid his discovery obligations by selectively leaving the materials with the
agency once he has reviewed them."). Questions about whether an agency may be in possession of additional
discoverable material that triggers an obligation to search should be directed to the relevant component at NSD.

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
prosecutor should contact NSD to coordinate a prudential search for potentially discoverable
information prior to indictment if he or she has a specific reason to believe that:
•

the agency or department likely possesses information that could affect the decision
whether, against whom, or for what offenses to charge;

•

the IC or military likely possesses documents that will fall within the scope of the
prosecutor's affirmative discovery obligations. In such cases, pre-indictment
discussions about how to handle the documents and information could avoid conflicts,
surprises, and disclose-or-dismiss dilemmas; or

•

the case may raise other questions regarding classified evidence that should be resolved
pre-indictment. 23

While not legally required, prudential searches assist the prosecution team in identifYing and
managing potential classified information concerns before indictment and trial. They may also
permit the prosecution team to tailor an indictment in a way that will reduce or eliminate the
relevance of any classified information, and thereby reduce or eliminate the likelihood of facing
a disclose-or-dismiss dilemma after the indictment is returned when the Classified Information
Procedures Act (CIP A) and other protective measures do not provide sufficient protection.
Prosecutors are strongly encouraged to contact NSD about the possibility of conducting a
prudential search as soon as it becomes evident that information in the possession of the IC or
military may be relied on, or may be discoverable, in a criminal case.

To ensure a consistent approach, avoid undue burdens on the IC and military, and best
ensure a timely response, all search requests to a component of the IC or military by any
Department of Justice (DOJ) prosecutor handling an investigation or prosecution that involves an
identifiable link to national security or to information within the possession of the IC should be
made through NSD, except as otherwise agreed by the Assistant Attorney General for NSD and
the Assistant Attorney General for the Criminal Division, as follows:
•

The Counterterrorism Section (CTS) should be contacted regarding search requests
for investigations and prosecutions involving offenses that CTS is responsible for
coordinating pursuant to the U.S. Attorney's Manual (USAM)?4

As noted above, see note I, supra, the IC may possess discoverable information not only in national security
cases, but in traditional criminal cases as well. Prosecutors should conduct a prudential search in any case in which
they or the other members ofthe prosecution team have specific reason to believe the IC possesses discoverable
information.
23

24 Pursuant to the USAM, all investigations, including criminal cases, that have an identified link to international
terrorism; domestic terrorism; torture, war crimes, and genocide matters (in coordination with the Criminal
Division); and weapons of mass destruction must be coordinated through CTS. USAM §§ 9-2.136-9-2.139.

 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information
•

The Counterespionage Section (CES) should be contacted regarding search requests
for investigations and prosecutions involving offenses that CES is responsible for
coordinating pursuant to the USAM.25

Requests should be made at the earliest opportunity and before any contact by the
prosecutor with the IC. See USAM § 9-90.210. NSD will coordinate between the relevant DOJ
prosecutors and the IC and military to ensure that potentially discoverable classified material is
provided to the prosecution team for review. NSD, in close consultation with the relevant DOJ
prosecutors, also will coordinate with the appropriate elements ofthe IC and the military to
ensure that use authority or other approvals are received in a timely manner; declassification
requests are promptly reviewed; and required disclosures are made pursuant to mutually agreed
upon and appropriate mechanisms to protect the information.
Prosecutors should also consult with the relevant component ofNSD if they are unsure as
to whether or not a prudential search is warranted.

Search requests should be focused, carefully reasoned, and based on case-specific facts,
and should include the following information:

•

all available identity information with respect to each known defendant/suspect and
potential witness - e.g., name (including full name, nicknames and aliases and any
spelling variations the prosecutor wants searched), date of birth, citizenship, and any
government identification numbers;

•

the time period to be covered (which will generally coincide with the time period
covered by the criminal activity charged or to be charged);

•

the components of the IC and/or military that have been involved in the case and a
discussion of the nature of the involvement; and

Pursuant to the USAM, all economic espionage investigations where there is an intent to benefit a foreign
government and other national security offenses listed in the USAM must be coordinated through CES. USAM
§§ 9-90.020; 9-59.100.

25

 Memorandum from the Acting Deputy Attomey General
Subject: Policy and Procedures Regarding Discoverable Information

Once an IC or military component has identified documents responsive to the search
request, the prosecution team or other attorneys from that office will review the documents,
provided that each member has the necessary security clearances. In the rare event that the
requisite security clearances cannot be obtained in a timely manner, NSD attorneys may review
the responsive files.
DOl prosecutors should review the responsive material to ensure the production is
complete. If it appears that the response does not include all of the material that would be
expected given the particular facts of the case, the prosecutors should coordinate with NSD prior
to making any follow-up requests to the IC or military component involved. The materials also
should be reviewed for information that suggests additional discoverable information may exist
in the agency's files or elsewhere within the possession, custody, or control of the United States
government.

If the ~rosecutors conclude that any of the classified information is relevant and arguably
discoverable, 6 they should coordinate with the appropriate element ofNSD to determine how to
proceed. NSD will facilitate communication between the prosecutors and the IC or military
component regarding declassification requests. Only the IC or military component that
originally classified the material can declassify it, and its decision to do so must be based upon
specific findings that use or disclosure will not result in harm to national security.
NSD also will facilitate discussions between prosecutors and the appropriate IC or
military component regarding how to pursue measures to protect information that is used or
disclosed in a prosecution. The Classified Information Procedures Act (CIPA) permits the
government, in appropriate circumstances, to: (1) delete classified material from discovery with
prior approval of the court; (2) disclose classified information to cleared defense counsel
pursuant to a protective order; (3) declassify and disclose information pursuant to a protective
order; (4) redact classified information in documents to be used or disclosed; (5) substitute an
unclassified statement of the facts contained in a classified document; or (6) submit an
unclassified summary of the information that protects sources and methods?7 NSD can advise
prosecutors and negotiate with the IC regarding how appropriately to use CIPA's protective
measures to protect classified information that is used or disclosed in a prosecution.
If the relevant IC or military component does not approve use or disclosure of the
information even under such protective measures, NSD can also assist prosecutors in tailoring
the charges to avoid or to minimize reliance on classified information.
Classified information may still be discoverable as Brady, Giglio, Rule 16, or Jencks material even if the
government does not intend to offer it into evidence.

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 Memorandum from the Acting Deputy Attorney General
Subject: Policy and Procedures Regarding Discoverable Information

As with other classified evidence, potentially discoverable information obtained pursuant
to FISA must be reviewed and disclosed in accordance with applicable law and Department
policies. Like eIP A, FISA provides specific procedures designed to facilitate the use of
intelligence information in criminal proceedings while at the same time protecting sources and
methods of intelligence collection. See generally 50 u.s.e. §§ 1806; 1825; 1845. Internal DOJ
policy also requires that rsrosecutors obtain advance authorization before using FISA information
in criminal proceedings. 8 The granting of FISA use authority is a related, but distinct, question
from discovery and declassification questions. Use, discovery, and declassification
determinations are time consuming, so early consultation with the appropriate components
within NSD is advisable whenever a case involves FISA materials.

Prosecutors submitting their search requests or making other inquiries regarding their discovery
obligations should call the relevant component ofNSD:

See Memorandum to All Federal Prosecutors from Michael B. Mukasey, "Revised Policy on the Use or
Disclosure ofFISA Information," Jan. 10,2008.

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