Discovery Policy
United States Attorney’s Office
Western District of New York

October 2010
(FINAL REVISION)

PROTECTED INFORMATION
ATTORNEY CLIENT PRIVILEGE/WORK PRODUCT DOCTRINE
FOIA/PRIVACY ACT PROTECTED - 5 U.S.C. §552(b)

 Table of Contents
Page
I.

What To Disclose.. . . . . . . . . . . . . . . . . . . . . 1
A.
B.
C.

D.
E.
F.
G.
II.

Rule 16.. . . . . . . . . . . . . . . . . . . . . .
Office Policy - Rule 16. . . . . . . . . . . .
Exculpatory and Impeachment Material. . . . . . . .
Office Policy - Brady/Giglio.. . . . . . . . .
Witness Statements - Jencks Act/Rule 26.2.. . . . .
Office Policy - E-Mail.. . . . . . . . . . . .
Office Policy - Jencks Act/Rule 26.2.. . . . .
Government’s Disclosure Obligations Where Defendant
Asserts Certain Defenses. . . . . . . . . . . . . .
Mandatory Redaction of Certain Information
Filed with the Court. . . . . . . . . . . . . . . .
Classified Information. . . . . . . . . . . . . . .
Title III Evidence. . . . . . . . . . . . . . . . .

Where To Look For It.. . . . . . . . . . . . . . . . . .
A.
B.

.
.
.
.
.
.
.

1
3
4
5
6
6
9

. 9
10
11
11
12

Who is part of the Prosecution Team. . . . . .
What to Review/What to Request.. . . . . . . .

12
13

III. When to Disclose It. . . . . . . . . . . . . . . . . . .

15

A.

Rule 16. . . . . . . . . . . . . . . . . . . .
Office Policy - Timing of Rule 16.. . . .
Exculpatory and Impeachment Material.. . . . .
Office Policy - Timing of Brady Material.
Office Policy Timing of Giglio Material. . . . . .
Witness Statements - Jencks Act/Rule 26.2. . .
Office Policy Timing Jencks Act/Rule 26.2. . . . .

15
15
15
15

IV.

How To Disclose It.. . . . . . . . . . . . . . . . . . .
Office Policy - How to Disclose Discovery.. . . . .

17
17

V.

Cases Involving National Security

18

B.

C.

. . . . . . . . . . .

16
16
16

Disclaimer
This Policy and the guidance contained herein are subject to legal precedent,
court orders, and local rules. It provides prospective guidance only and is
not intended to have the force of law or to create or confer any rights,
privileges, or benefits. See, United States v. Caceres, 440 U.S. 741 (1979).

i

 I.

What to Disclose

A.
Federal Rule of Criminal Procedure 16 - Rule 16(a) sets
forth the government's basic discovery obligations. The
obligation to provide Rule 16 discovery continues up to and
during trial. Under Rule 16(a), the government is required to
disclose the following:
1.

Oral Statements- Rule 16(a)(1)(A) - The Government must
disclose the substance of any oral statements made by
the defendant in response to interrogation by a known
government agent which the government intends to use at
trial.

2.

Written or Recorded Statements of the Defendant- Rule
16(a)(1)(B) - The Government must disclose and make
available for inspection, copying or photographing, all
of the following:
a.

Relevant written or recorded statements of the
defendant, if
i.
ii.

the statement is within the government's
possession, custody, or control; and
the attorney for the government knows or
through diligence could know that the
statement existed (not limited to statements
made to law enforcement);

b.

Includes that portion of any written record that
contains the substance of any relevant oral
statement made by the defendant - before or after
arrest - if the defendant made the statement in
response to interrogation by a person the
defendant knew was a government agent;

c.

Includes the defendant's recorded testimony before
a grand jury or at prior proceeding relating to
the charged offense.

1

 EXAMPLES OF STATEMENTS THAT MAY BE PART OF RULE 16 DISCOVERY:
These statements may include the following (non-exhaustive):
•
recordings, wiretaps, emails, text messages, FaceBook
information, YouTube etc.
•
handwritten notes, confessions
•
signed documents; e.g., Miranda waiver form, consent
to search
•
oral statements, whether or not memorialized in
reports; anything defendant said to agents or others
•
excerpts from reports pertaining to statements
•
pedigree
•
bonds
•
financial statements
•
pretrial reports - you should not have these reports
but if you do, or have information from such a
report, consider whether you need to disclose and if
so how.
•
probation reports - can be tricky issue - not usually
disclosed but you must review it for information that
you may have to disclose and consider how to
disclose.

3.

Organizational Defendants- Rule 16(a)(1)(C) Government must disclose statements described in Rule
16(a)(1)(A) and (B) if the person making the statement:
a.
was legally able to bind the defendant because of
that person's position as the director, officer,
employee or agent; or
b.
was personally involved in the conduct
constituting the offense and was legally able to
bind the defendant regarding that conduct because
of the person's position as a director, officer,
employee, or agent.

4.

Defendant’s Prior Record- Rule 16(a)(1)(D) - The
government must disclose the defendant's prior
record/criminal history.

5.

Documents and Objects- Rule 16(a)(1)(E) - The
government must disclose all documents and other
tangible evidence the government plans to introduce in
it case-in-chief or which are material to the defense
or if the item was obtained from or belongs to the
defendant.
2

 6.

Reports of Examinations and Tests - Rule 16(a)(1)(F)
a.
The government must disclose reports of physical,
mental, or scientific examinations (such as
handwriting analysis, drug analysis, fingerprint
reports, etc.) to be introduced by the government
in its case-in-chief or which are material to the
defense; and
b.
Expert witness - summary of opinion, bases and
reasons, qualifications.

7.

Special Situations:
a.

Taint Teams and Firewalls - if there is a
firewall/filter team, make sure filter team AUSA
is passing on discoverable information to
prosecution team AUSA. If using a taint team be
sure to consult with the Office Professional
Responsibility Officer (PRO).

b.

Regardless of whether a taint team is used, we are
obligated to comply with all discovery
obligations.

Office Policy - Rule 16
•

While Rule 16 makes the government's discovery obligations
contingent upon a defendant's request, it is the policy
within this Office to disclose such material regardless of
whether requested by the defense. Such disclosure must be
made as near the time of arraignment as possible but not
later than the discovery date set by the Court. Disclosure
at or before arraignment is encouraged.

•

Pursuant to Local Rule 12.1(b), AUSAs must be prepared to
discuss discovery schedules with the Court and counsel at
the time of arraignment.

•

Any delay in providing discovery under Rule 16 must be
approved by a supervisor. Discovery can not be delayed for
tactical reasons.

Practice Tip - Pursuant to Rule 16(b), if the defendant requests
Rule 16 disclosure and we provide it, then we are entitled to
reciprocal discovery.
3

 Practice Tip: Pursuant to Rule 16(d), we can, with good cause,
ask the Court ex parte to deny, restrict, or defer discovery or
inspection, or grant other appropriate relief. All ex parte
requests must be accompanied with a filed notice of ex parte
submission and must have prior approval of a supervisor.
B.

Exculpatory and Impeachment Material
1.

Brady and Giglio

As prosecutors, we are constitutionally required to disclose
exculpatory and impeachment information when such information is
material to guilt or punishment, regardless of whether a
defendant makes a request for such information. Government
disclosure of material exculpatory and impeachment evidence is
part of the constitutional guarantee to a fair trial. Brady v.
Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405
U.S. 150, 154 (1972). Exculpatory and impeachment information is
deemed material to a finding of guilt when there is a reasonable
probability that effective use of that information will result in
an acquittal.
Importantly, however, Department policy set forth in USAM
9-5.001, Policy Regarding Disclosure of Exculpatory and
Impeachment Information, requires disclosure by prosecutors of
information beyond that which is "material" to guilt as
articulated in Kyles v. Whitley, 514 U.S. 419 (1995); Strickler
v. Greene, 527 U.S. 263, 280-281 (1999). Prosecutors must take a
broad view of materiality and err of the side of disclosure.
Under DOJ Policy, a prosecutor must:
a.

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.

b.

Additionally, 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
4

 between conviction and acquittal of the defendant
for a charged crime.
c.

The New York Rules of Professional Conduct, Rule
3.8 (b) state:
A prosecutor or other government lawyer in
criminal litigation shall make timely
disclosure to counsel for the defendant or to
a defendant who has no counsel of the
existence of evidence or information known to
the prosecutor or other government lawyer
that tends to negate the guilt of the
accused, mitigate the degree of the offense,
or reduce the sentence, except when relieved
of this responsibility by a protective order
of a tribunal.

d.

The local rules of the District Court for the
Western District of New York require you to
conform to the New York Rules even if you are
admitted in another state. If, however, you are
admitted in a jurisdiction other than New York,
you may also be required to follow the
disciplinary rules for that jurisdiction, which
may be even broader than those set forth in this
policy. If you have a question in this regard, you
must contact the Office PRO.
Office Policy/Brady-Giglio

•

When considering Brady/Giglio obligations, take a broad
view of materiality and err of the side of disclosure.

•

AUSAs must comply with the District’s Brady/Giglio Plan as
set forth within the Office Manual - available on the WDNY
intranet website. Presently, the Giglio Coordinator is the
Appellate Chief.

•

Agent reports of witness interviews are to be treated as
witness statements and disclosed in accordance with the
policy concerning the discovery of witness statements.
The reason for such policy is that the statement may be
considered Giglio impeachment material.

5

 Practice Tip: All benefits to a witness must be disclosed to the
defense. This includes speaking to a state prosecutor to
encourage a favorable sentence in the witness's state case - even
if you do not know if it had an effect on the ultimate sentence
imposed.
C.

Witnesses' Statements - Jencks Act and Rule 26.2
1.

What is a statement?
a.
The Jencks Act (18 U.S.C. § 3500) and Fed. R.
Crim. P. 26.2 require disclosure of a witness's
statements that relate to the subject matter of
the witness's testimony at trial or a hearing.
Both the Jencks Act and Rule 26.2 define
"statement" similarly.
b.
Specifically, a statement includes:
i.
a written statement that the witness makes
and signs or otherwise adopts and approves.
ii. a substantially verbatim, contemporaneously
recorded recital of the witness's oral
statement that is contained in any recording
or any transcription of a recording (does not
mean that statement has to be precisely
verbatim).
iii. Grand Jury testimony
c.

What about E-mails?

WDNY E-Mail Policy
Any substantive e-mail communication from/to an agent who is a
potential witness or from/to any witness which relate to the
agent's or witness's potential testimony, must be preserved,
printed, and timely provided to the U.S. Attorney's Office for
review and for potential use as discovery material just like
any more formal written agency reports. "Substantive"
communications include summaries of investigative activity,
discussions of the relative merits of evidence,
characterization of potential testimony, interactions with
witnesses/victims, and issues relating to credibility.

6

 2.

What is not a statement?

Generally, an agent's report of interview (e.g., FBI
"302" or "DEA-6"), is not considered a statement of the witness
who was interviewed, unless, as noted above, the report contains
a substantially verbatim recital of the witness's statement, or
the witness reviews and adopts the report. A witness may be
deemed to have adopted the report or notes that were taken during
an interview if the witness agrees with an agent's oral
recitation of his notes or report to see if the notes or report
is correct. However, as a matter of policy, this Office generally
treats agent reports of witness interviews as witness statements
and discloses them in accordance with the policy concerning the
discovery of witness statements. See, Office Policy/Brady-Giglio,
above.
3.

Redaction of statements

Rule 26.2(c) provides that where a statement of a
witness contains some material that is relevant to the case, but
other material that is either privileged or does not relate to
the subject matter of the witness's testimony, the government may
call upon the trial court to review in camera the statement in
its entirety and excise any privileged or unrelated portions of
the statement before it is disclosed to the defense. This
implies that the government may not excise such a statement on
its own.
Practice Tip: This rule is one good reason to take separate
statements from a single witness for separate investigations or
cases.

4.

Notes of interview (agents and prosecutors)
a.

In the Second Circuit, the law regarding the
obligation of enforcement agents to maintain their
notes after they have used them to prepare a more
formal and complete summary of the interview is
not crystal clear, although the overall consensus
seems to be that agents need not retain their
notes where the notes are incorporated into a
final report that is provided to the defense.
United States v. Elusma, 849 F.2d 76, 79 (2d Cir.
1988); but see, United States v. Paoli, 603 F.2d
1029, 1036-37 (2d Cir. 1979). What is clear,
7

 however, is that if an agent's notes contain Brady
or Giglio material that is not included in the
agent's formal summary of the interview, the notes
remain relevant and the Brady/Giglio material must
be disclosed. Similarly, a prosecutor's notes of
a witness interview (as opposed to notes
containing mental impressions, personal beliefs,
trial strategy and legal conclusions) may have to
be disclosed, or the relevant information
contained therein, if the notes reflect
exculpatory or impeachment information. Most, if
not all, federal agencies are required to keep
their notes; be sure to ask for them.

5.

b.

Also, the government may not limit its obligation
to disclose exculpatory or impeachment evidence of
which it is aware either by simply declining to
make a written record of the information in the
first place or by omitting the information in a
final draft of the memorandum of interview and
destroying the notes that contain that
information. The substantive demands of Brady and
Giglio are not thwarted by the manner in which the
government treats or packages exculpatory
information.

c.

Generally, you should NOT interview or prepare
witnesses by yourself. Always have an agent
present. If you take notes - realize they may have
to be turned over to the defense. If an AUSA
meets with a witness solely for purposes of
preparing that witness for trial, then
notwithstanding the fact that the AUSA may not
take notes does not relieve the AUSA of the
obligation to note any inconsistencies and
disclose any statements which are Brady or Giglio
material.

Applicability of the Jencks Act and Rule 26.2.
a.

The Jencks Act applies to trials.

b.

Rule 26.2 applies to:
i.

preliminary hearings

ii.

detention hearings

8

 iii. suppression hearings
iv.

sentencing hearings

v.

hearings to consider revocation of probation
or supervised release

vi.

2255 hearings

Office Policy - Jencks Act/Rule 26.2
•

•

D.

Unless unrelated to the case, or absent unusual
circumstances such as potential serious threats to witness
safety, national security, or an ongoing criminal
investigation, it is the Office Policy, in the exercise of
an expansive discovery practice, to disclose reports of
interview to defense counsel together with other Jencks
Act material. Remember, even though a report of interview
is not generally a statement of the witness interviewed,
it is a statement of the agent who prepared the report.
The report must be disclosed if that agent will be a
witness and the report relates to the subject matter of
the agent's testimony.
All witness interviews must be memorialized by an agent or
law enforcement officer and you must be provided with a
copy of that report. This is necessary whether or not the
report is Jencks material, as the report may contain
information inconsistent with a witness' testimony at
trial and thus it is Brady/Giglio material. See, above.

Government’s Disclosure Obligations Where Defendant Asserts
Certain Defenses
1.

Notice of Alibi Defense - Rule 12.1

If, in response to a government request pursuant to
Rule 12.1(a)(1), the defendant provides specific notice to the
government of an intention to assert an alibi defense, the
government is then required within 14 days after the defendant's
notice, and no later than 14 days before trial, to give the
defendant in writing:

9

 a.
b.

the name, address and telephone number of each
witness the government will rely on to establish
that the defendant was present; and
each government rebuttal witness to the
defendant's alibi defense

Practice Tip: In view of the government's obligation to disclose
certain information about its witnesses if the defendant
responds to the government's request, consideration should be
given to making this request closer to trial rather than earlier
in the prosecution

2.

Notice of Insanity Defense; Mental Examination -Rule
12.2

If the defendant provides specific notice to the
government that defendant intends to assert a defense of insanity
at the time of the alleged offense, or introduce expert evidence
relating to a mental disease or defect or any other mental
condition bearing on the defendant's guilt or issue of punishment
in a capital case, the court MUST, upon the government’s request,
order the defendant to be examined under 18 U.S.C. § 4242
3.

Notice of Public Authority Defense - Rule 12.3

If the defendant provides specific notice that
defendant intends to assert a defense of actual or believed
exercise of public authority on behalf of a law enforcement
agency or federal intelligence at the time of the alleged
offense, the government is required to serve a written response
within 14 days after receiving the defendant's notice, but no
later than 21 days before trial, admitting or denying that the
defendant exercised the public authority identified in the
defendant's notice. Thereafter, reference should be made to the
Rule in order to assure that subsequent discovery obligations are
met.
E.

Mandatory Redaction of Certain Information Filed with the
Court
1.

Rule 49.1 requires that, unless otherwise ordered by
the court, we are required to redact certain categories
10

 of information filed with the court. Categories of
information that must be redacted include:

2.

a.

social security numbers – use last four digits

b.

taxpayer identification numbers – use last four
digits

c.

birth dates – use year

d.

names of individuals known to be minors – initials
only (see also, 18 U.S.C. § 3509(d)(2)

e.

financial account numbers – use last four digits

f.

home address of individuals –

city and state only

Categories of documents exempt from the Redaction
Requirement are set forth in Rule 49.1(b).

Practice Tips: Have two sets of documents at trial (could be
trial exhibits or 3500 Material). Seek permission from the
court to offer the redacted version into evidence unless it is
necessary to offer the unredacted version. Make sure that
redacted version is filed publicly. Be mindful that the trial
transcript must also be redacted if it contains information
that must be redacted pursuant to Rule 49.1.

F.

G.

Classified Material
1.

The Classified Information Procedures Act ("CIPA"),
Title 18, United States Code, Appendix 3, controls the
disclosure of classified information in discovery.

2.

If your case involves or implicates classified
information, contact the Office's National Security
Coordinator at the earliest possible juncture.

Title III Evidence

As part of voluntary discovery in cases involving Title
III/state wiretap interception of wire, electronic and/or oral
communications, Office policy is that the following should be
disclosed:
1.
Application(s) and agent affidavit(s)
2.
Interception order(s)
11

 3.
4.
5.
6.

Sealing order(s)
10 day letters/progress reports
Recordings of intercepted communications
Transcripts of intercepted communications

Additional disclosure may be made depending of the facts of a
particular case, defense request, or other case-related reason.
When disclosing any Title III information, thought should be
given to redacting the names of persons not yet charged,
information which will identify informants, information about
uncharged criminal conduct, or other information which should not
be made public.

II. Where To Look For It
A.

Who is Part of the Prosecution Team?
1.

We must locate and disclose all discoverable materials
noted above in Section I, including information that is
exculpatory and/or impeaching of a prosecution witness,
that is within the possession of the "prosecution
team." This team includes the agents and law
enforcement officers who helped to develop the case or
worked with or under the supervision of the prosecutor
during the investigation. The "prosecution team,"
however, may at times include other agencies. For a
more complete discussion of who might be included in
the "prosecution team" for discovery purposes, see
pages 2-3 of the Deputy Attorney General's January 4,
2010 "Guidance For Prosecutors" memo.

2.

Under Second Circuit caselaw, the “prosecution team”
has variously been defined as follows:
a.

United States v. Stewart, 433 F.3d 273, 298 (2d
Cir. 2006) - “[T]he propriety of imputing
knowledge to the prosecution is determined by
examining the specific circumstances of the person
alleged to be an ‘arm of the prosecutor,’” which
includes such factors as whether the person was
involved with the investigation, interviewed
witnesses, gathered facts, or developed
prosecutorial strategy.

b.

United States v. Avellino, 136 F.3d 249, 255 (2d
Cir. 1998) - “[K]nowledge on the part of persons
employed by a different office of the government
12

 does not in all instances warrant the imputation
of knowledge to the prosecutor, for the imposition
of an unlimited duty on a prosecutor to inquire of
other offices not working with the prosecutor's
office on the case in question would
inappropriately require us to adopt ‘a monolithic
view of government’ that would ‘condemn the
prosecution of criminal cases to a state of
paralysis.’”
c.

B.

United States v. Giffen, 379 F. Supp. 2d 337, 343
(S.D.N.Y. 2004) - “Documents that the Government
has reviewed or has access to must be provided to
aid a defendant in preparing his defense. . . .
The prosecutor need not, however, produce
documents from agencies that did not participate
in the investigation of the defendant or documents
of which it is unaware. . . . In other words, the
prosecutor is not required to conduct a separate
investigation for the purpose of responding to a
defendant's discovery requests.”

What to Review/Request? All evidence and other potentially
discoverable material gathered during the investigation,
whether in our custody or the custody or control of the
other members of the prosecution team, should be reviewed.
Special care should be given to gathering
exculpatory/impeachment information and witnesses'
statements, as discussed above in Section I. Specifically,
you should review, or cause to be reviewed by someone
intimately familiar with the law and DOJ policy on the
disclosure of exculpatory and impeachment information, the
following:
1.

All of the agency's investigative files.

2.

All of the CI/CW/CHS/CS files, by whatever name the
agency labels these. Agencies who make use of
confidential informants and cooperating individuals
have their own established procedures for retaining
information about those witnesses. The agencies may
keep multiple files containing different types of
records or information. Thus, inquiries to agencies
about informants should include a review of every kind
of file that might contain information about the
individual. Among other things, you should investigate
and disclose any information obtained in the following
13

 areas when you are going to have a confidential
informant or cooperating witness testify at trial or a
hearing:
a.
the witness's relationship with the defendant
b.
c.

the witness's motivation for
cooperating/testifying
drug and alcohol problems

d.

all benefits the witness is receiving, including:
i.

Monetary payments - how are they calculated?

ii.

Expenses, costs, housing - is anyone paying?

iii. Immigration status for the witness and/or
family members
iv.

Arrests - intervention by law enforcement

v.

Taxes - has the witness paid taxes on
informant payments?

vi.

any notes, diaries, journals, e-mails,
letters, or other writings by the witness

vii. prison files, tape recordings of telephone
calls, and e-mails, if the informant is in
custody
viii. criminal history
ix.

if the witness has acted as an informant in
the past, such prior service may constitute
impeachment evidence that must be disclosed.
See, United States v. Malpeso, 115 F.3d 155
(2d Cir. 1997).

3.

Evidence/information obtained via subpoena, search
warrants, or other legal process. With respect to
electronically-stored evidence, including e-mails,
sufficient time must be allotted for a search of hard
drives, disks and other storage hardware. These
searches may take a long time, so they should be
undertaken well before indictment.

4.

Evidence/information gathered by civil or regulatory
agencies in parallel investigations.
14

 5.

Substantive communications/correspondence including
e-mails, text messages, and letters, between and among
prosecutors, agents, witnesses, victims, victim-witness
coordinators, etc.

6.

Potential Giglio information about non-law enforcement
witnesses (including declarants whose hearsay
statements the government might seek to introduce at
trial). Ask the case agent to run a criminal history
report on all non-law enforcement witnesses.

7.

Any agent notes.

III. When To Disclose It
A.

Rule 16
Office Policy - Timing of Rule 16 Discovery

Disclosure must be made as near the time of arraignment as
possible but not later than the discovery date set by the Court.
Disclosure at or before arraignment is encouraged.
B.

Exculpatory and Impeachment Material
1.

Brady Material
a.
Constitutional requirement - in time to give
defense opportunity to make effective use of
material
b.
DOJ policy - reasonably promptly after it is
discovered
Office Policy - Timing of Brady Discovery

Disclose Brady material immediately.
c.

Court's Discretion - District courts have broad
discretion to set timetables for pre-trial
disclosure and AUSAs should consider making in
camera motions to delay disclosure if there are
security concerns
15

 2.

Giglio Material
a.

Constitutional requirement - No constitutional
requirement to disclose impeachment material
before trial

b.

DOJ policy - disclosed at a reasonable time before
trial to allow the trial to proceed efficiently –
unless countervailing concerns such as witness
safety and national security

Office Policy - Timing of Giglio Discovery
Giglio material will be disclosed in accordance with
district court’s order re: timing of disclosure - typically at
the time we file our pretrial submissions and disclose Jencks
Act materials. The Supreme Court has held that there is no
constitutional requirement that the government disclose
impeachment information prior to a guilty plea. United States
v. Ruiz, 536 U.S. 622 (2002). Nonetheless, if the AUSA is
aware of impeachment information so significant that it
undermines the AUSA's confidence in the defendant's guilt, the
AUSA should disclose the information to the defense and advise
their supervisor.

3.

Witness Statements - Jencks Act/Rule 26.2
a.

Constitutional/Statutory requirement - following
direct testimony of witness.

Office Policy - Timing of Jencks Act/Rule 26.2 Discovery
•

Hearing or other pre-trial proceeding (Rule 26.2):
•
Disclosure to be made sufficiently in advance
of hearing to allow defendant to make use of
it.

•

Trial (3500)
C
Disclosure to be made in accordance with
district court’s order re: timing of disclosure
- typically at the time we file our pretrial
submissions.

16

 IV. How to Disclose
A.

While we have, as an Office, adopted an expansive discovery
in a case, do NOT refer to the expansive discovery practice
as "open file discovery." Our files should not ever be
completely open (to preserve attorney-client privileged
information and the work product doctrine) and there may be
times when another government agency might have some
material or information of which you are not aware. The use
of the term "open file" is therefore inexact and potentially
misleading.

Office Policy - How to Disclose Discovery
•

Whether made through the physical or electronic
transfer of material, AUSAs should keep an exact copy
of the materials disclosed.

•

Always formalize disclosure by writing a letter stating
with specificity: (1) what was disclosed; (2) when it
was disclosed; and (3) how it was disclosed.

•

Electronic Disclosures must be made in accordance with
ALS Policies and Procedures Memo.

•

Whenever privacy, safety, or other considerations
warrant, AUSAs must consider the use of protective
orders to limit the access to and use of discovery
material provided by the government in furtherance of
its discovery obligations under this Discovery Policy.
A sample proposed protective order is available on RDocs. Further, consideration should be given filing a
motion or including a point in the trial memorandum
requesting the return of 3500 and Giglio material at
the conclusion of the trial.

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 V. Cases Involving National Security
As a general rule, National Security related investigations and
prosecutions are not subject to this policy and guidance. The
following is guidance issued by the Department of Justice
concerning issues pertaining to discovery in cases involving
national security:
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 (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:

18

 M
Those targeting corrupt or fraudulent
practices by middle or upper officials of a
foreign government;
M
Those involving alleged violations of the
Arms Export Control Act or the International
Emergency Economic Powers Act;
M

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

M

Other significant cases involving international
suspects and targets; and

M

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.

19