DISCOVERY POLICY
United States Attorney’s Office
Western District of Tennessee

October 2010

National Security related investigations and prosecutions are not subject to this
policy and guidance. Policy concerning these matters and cases is governed by the
Memorandum dated September 29, 2010 of Gary G. Grindler, Acting Deputy
Attorney.

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

 Preamble: The guiding principle of this policy is to seek justice as representatives
of the United States and as Department of Justice prosecutors. In some instances broad
disclosure might lead to speedy and just resolutions, preserving limited resources. While
in other cases, disclosures beyond those required by relevant statutes, rules and policies
may risk harm to victims and witnesses, obstruction of justice, or other consequences that
are contrary to the Department of Justice’s mission.
It is the practice of this District to provide timely and complete discovery pursuant
to all applicable rules, case law and Department of Justice policy.
This office does not have an “open file” policy. The Deputy Attorney General
directed in the January 4, 2010 memorandum that:
Prosecutors should never describe the discovery being provided as “open
file.” Even if the prosecutor intends to provide expansive discovery, it is always
possible that something will be inadvertently omitted from the production and the
prosecutor will then have unintentionally misrepresented the scope of the 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.”
See also United States v. Atish, 804 F.2d 920(6th. Cir. 1986) (“If the government
agrees to maintain an ‘open file’ policy, ... the government is obligated to adhere to that
agreement.”)
No AUSA or SAUSA is authorized to implement, agree to, or imply or
represent that the office or any prosecutor in this district has an “open file” policy.
Prosecutors should carefully and thoughtfully consider what information to provide in the
course of discovery, and “open file” discovery is inconsistent with that considered decisionmaking. Open file discovery creates the risk that department policy, office policy, internal
committee decisions, or work product could be disclosed inadvertently and risks waiver of
privileges and confidentiality. Any request for this type of internal office information shall
be brought to the attention of a supervisor.
This policy is not intended to be an exhaustive or comprehensive outline governing
the entire discovery rules or procedures. This outline does not and could not answer every
question that may arise in a particular case. This policy does not serve as a substitute for
the responsibility of the prosecutor to be thoroughly familiar with the rules, statutes, case
law, and Department of Justice policy regarding discovery in criminal cases.
The policy 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
rights, privileges, or benefits. See United States v. Caceres, 440 U.S. 741 (1979).
This policy is deliberative and pre decisional.

1

 I.

Disclosure Requirements:
A.

Rule 16 of the Federal Rules of Criminal Procedure sets forth the
basic discovery obligations of the United States.
1.

This is a statutory obligation triggered by a defense request.

2.

Local Rules of the Court require a written request for Rule 16
discovery.

3.

A written response for discovery is required per the Local
Rules and the prosecutor should adhere to the fourteen (14)
day time limit set forth in the Local Rules.

4.

The prosecutor’s obligation is a continuing one, up to and
during trial. Disclosures should be made in a timely manner.

5.

Include in the original written response and all subsequent
discovery responses a request for reciprocal discovery
pursuant to Rule 16 (a)(1)(E), (documents and objects) and
Rule 16(a)(1)(F)(reports of examinations and tests).

6.

Frequently defense will make a request in the initial discovery
request for Fed. R. Evid. 404(b) evidence and pursuant to Fed.
R. Crim. P. 12(b)(4)(B). It is a good practice to respond to
such requests in your discovery response.

7.

Routinely defense will request in the initial discovery request
evidence favorable to the defendant as well as impeachment
evidence. Be guided by the guidelines in this policy,
Department of Justice policy, and case law to decide
disclosure and the timing of disclosure.

8.

“Fed. R. Crim. P. (a)(2) provides that “discovery or inspection
of reports, memoranda, or other internal documents made by
an attorney for the government or other government agent in
connection with investigating and prosecuting the case” are not
discoverable. Statements of government witnesses are not
discoverable under Rule 16.

Questions or concerns regarding whether a particular item is discoverable should
be discussed with a supervisor.

2

 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.

Brady/Giglio Information
1.

This is a Constitutional obligation not triggered by a request.

2.

Prosecutors are to be thoroughly familiar with Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny and Giglio v.
United States, 405 U.S. 150 (1972) and its progeny and adhere
to the disclosure of exculpatory evidence and impeachment
evidence in accordance thereof.

3.

Prosecutors are to be thoroughly familiar with DOJ Policy and
adhere to the policy on the disclosure of exculpatory and
impeachment evidence which states in part:
A.

Purpose. Consistent with applicable federal
statutes, rules, and case law, the policy set
forth here is intended to promote regularity in
disclosure practices, through the reasoned
and guided exercise of prosecutorial
judgment and discretion by attorneys for the
government, with respect to the
government's obligation both to disclose
exculpatory and impeachment information to
criminal defendants and to seek a just result
in every case. 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,
see USAM 9-21.000, 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). This policy is not a
substitute for researching the legal issues
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 that may arise in an individual case.
Additionally, this policy does not alter or
supersede the policy that requires
prosecutors to disclose "substantial
evidence that directly negates the guilt of a
subject of the investigation" to the grand jury
before seeking an indictment, see USAM 911.233.
B.

Constitutional obligation to ensure a fair trial
and disclose material exculpatory and
impeachment evidence. 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). The
law requires the disclosure of exculpatory
and impeachment evidence when such
evidence is material to guilt or punishment.
Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154.
Because they are Constitutional obligations,
Brady and Giglio evidence must be disclosed
regardless of whether the defendant makes a
request for exculpatory or impeachment
evidence. Kyles v. Whitley, 514 U.S. 419, 43233 (1995). Neither the Constitution nor this
policy, however, creates a general discovery
right for trial preparation or plea negotiations.
U.S. v. Ruiz, 536 U.S. 622, 629 (2002);
Weatherford v. Bursey, 429 U.S. 545, 559
(1977).

1.

Materiality and Admissibility. Exculpatory
and impeachment evidence is material to a
finding of guilt—and thus the Constitution
requires disclosure—when there is a
reasonable probability that effective use of
the evidence will result in an acquittal. United
States v. Bagley, 475 U.S. 667, 676 (1985).
Recognizing that it is sometimes difficult to
assess the materiality of evidence before
4

 trial, prosecutors generally must take a broad
view of materiality and err on the side of
disclosing exculpatory and impeaching
evidence. Kyles, 514 U.S. at 439. While
ordinarily, evidence that would not be
admissible at trial need not be disclosed, this
policy encourages prosecutors to err on the
side of disclosure if admissibility is a close
question.
2.

The prosecution team. It is the obligation of
federal prosecutors, in preparing for trial, to
seek all exculpatory and impeachment
information from all the 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. Kyles, 514 U.S. at
437.

C.

Disclosure of exculpatory and impeachment
information beyond that which is
constitutionally and legally required.
Department policy recognizes that a fair trial
will often include examination of relevant
exculpatory or impeachment information that
is significantly probative of the issues before
the court but that may not, on its own, result
in an acquittal or, as is often colloquially
expressed, make the difference between guilt
and innocence. As a result, this policy
requires disclosure by prosecutors of
information beyond that which is "material"
to guilt as articulated in Kyles v. Whitley, 514
U.S. 419 (1995), and Strickler v. Greene, 527
U.S. 263, 280-81 (1999). The policy
recognizes, however, that a trial should not
involve the consideration of information
which is irrelevant or not significantly
probative of the issues before the court and
should not involve spurious issues or
5

 arguments which serve to divert the trial
process from examining the genuine issues.
Information that goes only to such matters
does not advance the purpose of a trial and
thus is not subject to disclosure.
1.

Additional exculpatory information that must
be disclosed. A prosecutor must disclose
information that is inconsistent with any
element of any crime charged against the
defendant or that establishes a recognized
affirmative defense, regardless of whether
the prosecutor believes such information will
make the difference between conviction and
acquittal of the defendant for a charged
crime.

2.

Additional impeachment information that
must be disclosed. A prosecutor must
disclose information that either casts a
substantial doubt upon the accuracy of any
evidence—including but not limited to
witness testimony—the prosecutor intends to
rely on to prove an element of any crime
charged, or might have a significant bearing
on the admissibility of prosecution evidence.
This information must be disclosed
regardless of whether it is likely to make the
difference between conviction and acquittal
of the defendant for a charged crime.

3.

Information. Unlike the requirements of Brady
and its progeny, which focus on evidence,
the disclosure requirement of this section
applies to information regardless of whether
the information subject to disclosure would
itself constitute admissible evidence.

4.

Cumulative impact of items of information.
While items of information viewed in isolation
may not reasonably be seen as meeting the
standards outlined in paragraphs 1 and 2
above, several items together can have such
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 an effect. If this is the case, all such items
must be disclosed.
See, USAM § 9-5.000-5.001 Policy Regarding Disclosure of Exculpatory and
Impeachment Information
4.

Prosecutors should have candid conversations with all law
enforcement witnesses concerning potential Giglio material.
Prosecutors should consult the Brady/Giglio coordinator, the
Professional Responsibility Officer, or a supervisor regarding
any issue of witness credibility relative to a law enforcement
witness. If it is necessary to request potential impeachment
information from a law enforcement agent covered under the
Attorney General Policy Regarding the Disclosure to
Prosecutors of Potential Impeachment Information Concerning
Law Enforcement Agency Witnesses such request should be
made through the Brady/Giglio coordinator.

5.

All potential Brady/Giglio information known by or in the
possession of the prosecution team relating to all witnesses
should be gathered and reviewed by the prosecutor.

Questions by the prosecutor regarding a possible Brady/Giglio issue should be
discussed with the direct supervisor and the Brady/Giglio coordinator prior to any
determination that a disclosure will not be made or will be delayed after being
discovered by a prosecutor.
C.

Jencks Act Material and Fed. R. Crim. P. 26.2
1.

Title 18 U.S.C. § 3500 requires that after the direct examination
of a witness and upon motion of the defense for the disclosure
of a witness’ statement in the possession of the United States
that relates to the subject matter of the witness’ testimony at
trial.
a.

b.

What is a statement:
(1)

A written statement that the witness makes,
signs, or otherwise adopts or approves.

(2)

A stenographic, mechanical, electrical, or other
recording or transcription of a recording which is
a substantially verbatim recital of an oral
statement.

What is not a statement:
7

 (1)

Generally agent’s memorandum of a testifying
witness’ interview is not a statement of the
witness if notes were not adopted and approved
by the witness. United States v. Phibbs ,999
F.2d 1053(6th Cir.1993).
Be aware, however, that a report of an interview
written by a testifying agent must be disclosed
under Jencks if the agent testified about a matter
contained in the report. Also substantive e-mail
communications from/to and agent who is a
potential witness or from/to any witness which
relates to the agent’s or witness’ potential
testimony must be preserved.

c.

2.

Only the portions of a report containing statements that
relate to the subject matter testified on direct
examination are required to be produced. Production of
all statements which relate to the subject matter of the
issue in the case is not required. United States v.
Susskind, 4 F.3d 1400,1404(6th Cir. 1993).

The Sixth Circuit has established that a Jencks statement must be
presented after a witness has testified. See, United States v.
Presser, 844 F.2d 1275,1283-84(6th Cir. 1988). The Sixth Circuit held
in United States v. Mullins,22 F.3d 1365,1372(6th Cir 1994) when a
statement is both Jencks material and Brady material, “the Jencks Act
overrides Brady and is the sole requirement for disclosure of such
evidence.”
Consistent with the law of this Circuit and Title 18 U.S.C. § 3500,
generally Jencks statements will be produced after a witness has
testified. However, at the discretion of the prosecutor and adhering
to DOJ policy guidelines set forth at USAM § 9-5.001 regarding the
timing of disclosure of exculpatory and impeachment information, any
statements subject to production may be provided to defense counsel
at an earlier time to avoid unnecessary delays in the proceedings.

3.

Fed. R. Crim. Proc 26.2 also governs the production of witness
statements at certain pre-trial and post-trial hearings, providing
disclosure after the witness has testified. This rule governs prior
statements of all witnesses except the defendant. It applies to
defense witnesses so prosecutors should make the request for such
statements.

D.

Classified Material
8

 Disclosure of classified material is governed by The Classified
Information Procedures Act (CIPA) or in some cases The Foreign Intelligence
Surveillance Act (FISA). Occasions may arise where some source/informant
information may be classified for national security reasons. If your case
involves or implicates classified information or FISA information contact the
office’s ATAC coordinator. Such classification does not exempt prosecutors
from their discovery/disclosure duties. This discovery policy does not govern
disclosure in cases involving terrorism and national security. Policy
concerning these cases is dependent on guidance developed by the
Department of Justice.
Cases involving national security, including terrorism, espionage,
counterintelligence, and export enforcement, can present unique and difficult
criminal discovery issues with far reaching implications for national security
and the nation’s intelligence community. 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:
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;
9

 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.
II.

Gathering and Reviewing Discoverable Information
A.

Where to Look
1.

Seek all discoverable as well as Brady/Giglio information from
the prosecution team.
a.

Prosecution Team:
(1)

AUSAs, SAUSAs and DOJ attorneys

(2)

Case agents and all agents working on
the case

(3)

Federal, state and local law enforcement
agencies assisting in the
investigation

(4)

Regulatory agencies that are usually
involved in parallel proceedings such as
SEC, FDIC, EPA, FTC. The prosecutor
should consider whether the relationship
with the other agency is close enough to
make it a part of the prosecution team.
Please refer to Memorandum For
Department Prosecutors : Guidance for
Prosecutors Regarding Criminal
Discovery to determine members of the
prosecution team. Prosecutor should
discuss with a supervisor any questions
or concerns as to whether the agency

10

 should be considered as part of the
prosecution team.

B.

(5)

Agency files of law enforcement officers
when prosecutor has reason to believe
impeachment evidence is contained in
agency files. Prosecutors should make
inquiry of agents as to the existence of
possible impeachment material.
Prosecutors should be familiar with the
procedures established in the office’s
Giglio plan and confer with the
Brady/Giglio coordinator to obtain access
to agency files.

(6)

Intelligence files - Please contact your
supervisor or the ATAC coordinator as to
the procedures to follow to obtain
information relative to such files.

What to Review
1.

Investigative Agency Files:
Review the entire case file. Make a request from all members
of the prosecution team of all discoverable items within their
possession and control. This request should require that the
prosecution team members provide all information within their
possession and not just the items deemed by the prosecution
team member to be relevant. You may decide to request that
a listing be prepared setting forth all the documentary
discovery within the case file. You should familiarize yourself
with the particular types and names of documentary material
maintained by the agency on the investigation. Do not limit
yourself to the common ones such as the FBI 302s. Ask to
review or request a listing of everything within the files
regardless of what the agency may call it. The agency’s entire
investigative file should be reviewed including documents such
as Electronic Communications(ECs), inserts, e-mails etc. You
should be granted access to the substantive case file and any
other file or document you have reason to believe contains
discoverable information. Should a dispute arise as to the
position of the agency that internal files will not be made
available for you to review, consult your supervisor.

2.

Confidential Informant/Witness/Human Source Files:

11

 Ask the agency to provide the entire file on the source and not
just the portion that pertains to the case. Agencies who make
use of confidential informants and cooperating individuals have
their own established procedures for retaining information
about those witnesses. The agencies may have 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. The case agent should be the point of contact for
obtaining access to a source file. If for any reason the
prosecutor encounters difficulty in gaining appropriate access,
a supervisor in the office should be consulted. Further
guidance in this area on taking steps to protect nondiscoverable, sensitive information contained in source files as
well as security concerns is contained in Memorandum For
Department Prosecutors : Guidance for Prosecutors Regarding
Criminal Discovery.
If you believe that the circumstances of the case warrant
review of a non-testifying source‘s file, you should follow the
agency’s procedures for requesting the review of such a file.
If you encounter any difficulty in gaining access, please consult
your supervisor.
3.

Evidence and information gathered from all sources: such as
by consent, subpoena, search warrant, and/or court order
should be reviewed by the prosecutor.

4.

Documents gathered by civil attorneys and/or regulatory
agencies in parallel proceedings, who are not considered part
of the prosecution team, involving the same subject matter of
the criminal case should be reviewed by the prosecutor.

5.

Substantive case-related communications/correspondence
including e-mails, text messages and letters between and
among prosecutors, agents, witnesses, victims, victim- witness
coordinators, etc. All such communications should be
maintained in the case file or preserved in a manner that
associates them with a case. The office policy on electronic
communications covers the need to ensure preservation of
substantive case related e-mails. Review should be conducted
of all other substantive case related communications, voice
mail, memoranda and/or notes.

6.

Potential Brady/Giglio information relating to law enforcement
witnesses: See USAM 5-100 and consult with the office’s
12

 Brady/Giglio coordinator and/or supervisor to obtain law
enforcement files in this area.
7.

Potential Brady/Giglio information relating to non-law
enforcement witnesses such as:
(a) prior inconsistent statements as well as new or inconsistent
statements made during trial preparations;
(b) benefits provided to witnesses-- i.e. dropped or reduced
charges, immunity, motions for downward departures,
sentence reductions or expectations of same;
© assistance in state and local prosecutions and letters setting
forth the extent of such assistance on behalf of the witness;
(d) deportation, visa or other immigration status considerations;
(e) monetary benefits;
(f) known but uncharged criminal conduct;
(g) prior convictions;
(h) substance abuse or mental issues; and
(I) bias.

8.

Information Obtained in Witness Interviews:
Prosecutor should conduct a review of all witness interviews,
whether or not the witness is expected to testify. Substantive
witness interviews should be memorialized by the case agent.
A prosecutor should not conduct an interview without an agent
present. If exigent circumstances make it impossible to secure
an agent’s presence, the prosecutor should secure the
presence of another office employee at the interview.

9.

Victim - Witness Coordinator Notes

10.

Agent Notes

11.

Prosecutor Notes
Note taking responsibilities should be discussed by the
prosecutor and the agent regarding witness interviews.

C.

Conducting the Review
1.

The prosecutor is ultimately responsible for the discovery
obligations and controls the review process.

2.

If the items and materials are voluminous, the prosecutor may
delegate the review to agents, paralegals, or agency counsel
under the parameters established by the prosecutor to identify
13

 all potentially discoverable material.
3.

D.

The prosecutor must make all disclosure decisions.

Making the Disclosures
1.

2.

Timing
a.

Prosecutor should respond to a request for discovery
within the fourteen (14) days set forth by Local Rule.

b.

After the initial discovery response, the prosecutor
mindful of the continuing duty to disclose, should
provide continuing discovery in a timely manner in
keeping with the principles of this policy. A written
response is required.

Brady & Giglio
a.

DOJ policy requires prosecutors to disclose exculpatory
and impeachment material to guilt or innocence in
sufficient time to permit the defendant to make effective
use of that information at trial.
Disclosure of the information does not mean the
evidence is admissible at trial.

b.

Supervisory approval and notice to the defendant.
A prosecutor must obtain supervisory approval not to
disclose impeachment information before trial or not to
disclose exculpatory information reasonably promptly
because of its classified nature. However, notice must
be provided to the defendant of the time and manner by
which disclosure of the exculpatory or impeachment
information will be made.

E.

Manner/Form of Disclosure
1.

A written request from the defense for Fed.R. Crim Pro.
16 discovery is required by Local Rule 15.1.

2.

A written response is required by the prosecutor, including the
following:
a.

Identification of the date the request was received by
the United States Attorney and the name of the attorney
making the request.
14

 3.

F.

b.

Be as specific as possible to describe the discoverable
items or describe specifically by categories the
discoverable items. Copies of discoverable items are to
be included in the response unless the number of
documents creates an unreasonable burden or
expense.

c.

Documents shall be made available for inspection and
copying, at the defendant’s expense if copies are not
included in the response as described in paragraph (b)
above. The response should indicate the time, date,
and place that documents will be available. If the items
are not going to be available for viewing at the United
States Attorney’s Office, the prosecutor should notify
agents who have control of the documents of the
necessity to make the documents available.

d.

File the discovery letter only with the Court.

e.

Keep an exact copy of everything made available and
provided.

Brady Disclosure-Always Document Disclosure
a.

Prosecutors should consider whether disclosure
obligations may be fully discharged while better
protecting the government or witness interests such as
security or privacy via a summary letter to defense
counsel rather than producing the record in its entirety.

b.

If the information is not provided in its original form and
is provided in letter format to defense counsel, please
ensure that the full scope of all pertinent information is
provided.

Make a Record of all Disclosures
1.

Formalize disclosure by writing a letter setting forth when
and how the disclosure is made.

2.

State disclosure on the record in those instances where
disclosure is made for the first time in a court proceeding.

15