Local Rule Criminal L. R. 16: Discovery and Inspection

Criminal L. R. 16. Discovery and Inspection.

(a) Expanded Discovery Policy.

(1) At arraignment, the government must state on the record to the presiding judge whether it is following its Expanded Discovery Policy as defined in Criminal L. R. 16(a)(2). If the government states that it is following the Expanded Discovery Policy and the defense accepts such discovery materials, then the defense's discovery obligations under Fed. R. Crim. P. 16(b) arise without further government motion or request and both parties must be treated for all purposes in the trial court and on appeal as if each had filed timely written motions requesting all materials required to be produced under Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), (E), (F), and (G), and 16(b)(1)(A), (B), and (C), and invoking Fed. R. Crim. P. 16(c). If the government is following the Expanded Discovery Policy, the government need not respond to and the Court must not hear any motion for discovery under Fed. R. Crim. P. 16(a) or 16(b) unless the motion complies with subsection (b) of this rule.

(2) As defined by the United States Attorney's Office, the "Expanded Discovery Policy" means disclosure without defense motion of all information and materials listed in Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), and (F); upon defense request, material listed in Fed. R. Crim. P. 16(a)(1)(E); material disclosable under 18 U.S.C. § 3500, other than grand jury transcripts; reports of interviews with witnesses the government intends to call in its case-in-chief relating to the subject matter of the testimony of the witness; relevant substantive investigative reports; and all exculpatory material. The government retains the authority to redact from open file material anything (i) that is not exculpatory and (ii) that the government reasonably believes is not relevant to the prosecution, or would jeopardize the safety of a person other than the defendant, or would jeopardize an ongoing criminal investigation. The defense retains the right to challenge such redactions by motion to the Court.

(3) Unless these items contain exculpatory material, "expanded discovery materials" do not ordinarily include material under Fed. R. Crim. P. 16(a)(1)(G), government attorney work product and opinions, materials subject to a claim of privilege, material identifying confidential informants, any Special Agent's Report (SAR) or similar investigative summary, reports of interviews with witnesses who will not be called in the government's case-in-chief, rebuttal evidence, documents and tangible objects that will not be introduced in the government's case-in-chief, rough notes used to construct formal written reports, and transcripts of the grand jury testimony of witnesses who will be called in the government's case-in-chief.

(4) Unless otherwise ordered by the Court, when the government is following the Expanded Discovery Policy under Criminal L. R. 16(a)(1) and 16(a)(2), materials described in Fed. R. Crim. P. 16(a)(1)(G) must be disclosed to the defense not later than 15 days before the commencement of the trial, unless the government shows good cause for later disclosure. Grand jury transcripts of any and all witnesses the government intends to call at trial will be made available to the defense no later than 1 business day before the commencement of the trial. The defense must disclose materials described in Fed. R. Crim. P. 16(b)(1)(C) as soon as reasonably practicable after the government's disclosure under Fed. R. Crim. P. 16(a)(1)(G), and in any event not later than 5 business days before trial, unless the defense shows good cause for later disclosure.

(5) If the government is following the Expanded Discovery Policy, the defense must disclose materials described in Fed. R. Crim. P. 16(b)(1)(A) and (B) as soon as reasonably practicable, and in any event not later than 15 days before commencement of the trial, unless the defense shows good cause for later disclosure.

(6) If the government elects not to follow the Expanded Discovery Policy described in Criminal L. R. 16(a)(2), discovery must proceed pursuant to Fed. R. Crim. P. 16 and Criminal L. R. 12(a)(3).

(b) Motions to Compel Discovery or Inspection. All motions to compel discovery or disclosure must be accompanied by a written statement by the movant that, after the movant has in good faith conferred or attempted to confer with the party failing to make disclosure or discovery in an effort to obtain it without court action, the parties are unable to reach an accord. The statement must recite the date and time of the conference or conferences and the names of all parties participating in the conference or conferences.

Committee Comment: The "Expanded Discovery Policy" set forth in this rule had been known as the "Open File Policy." In 2010, after defense counsel in other districts alleged that the term "open file" was misleading because the government was not providing access to its actual "file," the Department of Justice directed all federal prosecutors to avoid using the term. The change to "Expanded Discovery Policy" simply reflects the fact that the United States Attorney's Office no longer refers to its policy as an "open file." Despite the change in name, the policy embodied in this rule remains unchanged.